Beyond the Border Action Plan: Report of Stakeholder Feedback and Recommendations on Facilitating Business Travel between the United States and Canada

Background

In February 2011, U.S. President Barack Obama and Canadian Prime Minister Stephen Harper outlined a joint program to cooperate on mutual security and economic issues in the context of the Beyond the Border: A Shared Vision for Perimeter Security and Economic Competitiveness.Footnote 1 In December 2011, the leaders released a joint Action Plan that outlines specific initiatives in support of four key areas of cooperation:

  • Early identification and response to joint external threats including natural disasters, pandemics and infectious diseases, document fraud, violent extremism, and international terrorism.
  • Facilitating trade, economic growth and job creation by modernizing port-of-entry infrastructure and management, integrating operations or developing joint port facilities where practicable, and expanding trusted traveler and trader programs.
  • Building upon existing bilateral efforts to combat transnational crime through cross-designated officers and operations, and information sharing.
  • Protecting critical infrastructure and cybersecurity from disruptions in service or functionality.

Facilitating the cross-border movement of business travelers is a central component of the Action Plan. The United States and Canada are each other’s largest single trade partners and trade between the two countries extends beyond bidirectional movements: a growing number of internationally competitive global businesses have supply chains and management structures that stretch across the U.S.-Canada border. In a global economy where U.S. and Canadian workers and companies retain a competitive advantage in skill-intensive services but face growing competition from other countries and world regions, the movement of business travelers is a critical concern to both governments.

The two countries agreed to six action items on business traveler issues, including to:

  • 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 traveler issues.
  • Review and improve existing redress and recourse mechanisms for business travelers whose applications are denied.
  • Allow all categories of business travelers to request adjudication of employment and related petitions by destination country immigration authorities and resolve potential issues prior to travel.
  • 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.
  • Pursue changes to existing rules authorizing the temporary entry of business visitors who provide after-sale service so they apply equally to those who provide after-lease servicing (servicing during the term of lease).
  • Develop and implement specific approaches to incorporate designating documents onto the NEXUS client profile for predictable, expedited clearances.

Within the framework of the Action Plan, the governments of Canada and the United States held joint stakeholder consultations in Washington, DC and Toronto, ON in May 2012 to receive feedback on the six actions outlined above, and to identify and assess how the two governments could further facilitate the bilateral movement of business travelers. (A background brief distributed at these consultations is included in the Appendix.) U.S. Department of Homeland Security (DHS) Secretary Janet Napolitano opened the Washington, DC consultation underlining the importance of the bilateral relationship as well as the challenges of facilitating lawful cross-border movements while maintaining appropriate levels of security. Jason Kenney, Canada’s Minister of Citizenship, Immigration, and Multiculturalism, participated in the Toronto, ON consultation and agreed with Secretary Napolitano’s assessment of the challenges and importance of U.S.-Canada business travel.Footnote 2

Participating stakeholders included representatives of industry associations, immigration attorneys, and human resource managers for corporations representing a wide range of industries including the following: information technology, food processing, banking and financial services, business and advisory services, energy and mining, transportation and logistics, utilities, hospitality and tourism, automotive and aerospace, manufacturing, higher education, and biotechnology. In addition, the two governments received 28 written comments. A list of the 21 participants at the consultations and the businesses and organizations that submitted comments is included in the Appendix.

Citizenship and Immigration Canada (CIC) and DHS invited the Migration Policy Institute (MPI) to moderate the consultations and to report on the recommendations made by stakeholders.Footnote 3 This report summarizes stakeholders’ comments but ultimately reflects the rapporteurs’ professional judgment on the feasibility, urgency, and impact of the various proposals and business traveler issues not currently addressed in the Action Plan.

Overview

The U.S. and Canadian economies have been closely linked for over a century. When the two countries agreed to a sector-specific free trade agreement for the automotive industry in 1965, the bilateral goods trade grew more than eleven-fold over the next two decades.Footnote 4 In 1987, the free trade agreement was expanded more broadly and, over the next two decades, total bilateral trade nearly quadrupled. Mexico joined the free trade area in 1994 under the North American Free Trade Agreement (NAFTA). By 2008 bilateral trade in goods and services between the United States and Canada totaled $604 billion making it the largest bilateral trade relationship in the world and more than the Gross Domestic Product of all but the world’s 17 largest economies.Footnote 5

The specifics of the bilateral economic relationship, as well as the broader international context, have developed over time. As the United States and Canada have evolved from global leaders in manufacturing in the 1960s into global leaders in professional and business services by the 2000s, the nature of bilateral trade has changed. Natural resources have always played an important role in Canadian exports to the United States, but in recent years mining and energy have taken a much more prominent place as opposed to traditional exports such as timber and fish. Professional services and intra-firm trade have also grown: Businesses in the United States and Canada no longer simply sell goods and services to each other but often operate from an integrated platform serving both markets.

Increasingly, they also engage in trade with other parts of the world from their joint North American base.

This organic business integration and competitive edge in the global economy is, in many respects, the outcome of policies enacted nearly three decades ago. However, over the course of the stakeholder consultations convened by DHS and CIC, it became clear that some policies and practices in both countries have not kept pace with the changing nature and practical realities of bilateral trade, particularly the growing trade in professional and business services within and among businesses. More than ever before, trading with each other and with other parts of the world requires the temporary movement of business personnel.

These new movements often challenge traditional notions of immigration and immigrants that constitute the foundation of existing legislation and regulations. They call for:

  • speed and predictability in obtaining work permits, visas (when necessary) or other required entry documents, and in passing through airports or crossing the physical border;
  • the possibility of short visits and longer-term stays that involve complex business relationships and, frequently, remuneration of workers residing in one country by employers or clients in the other country;
  • the movement of highly-skilled corporate executives, as well as early-career or mid-level technicians and managers who represent a company’s long-term workforce investment;
  • the movement of Canadian and American citizens as well as skilled temporary and permanent immigrants to these countries from other parts of the world; and
  • minimal regulatory requirements so that cross-border business engagements are an option for large international corporations with deep human resources departments as well as small- and mid-sized companies where management and operational roles often overlap.

Some stakeholders reported frustration with delays, long processing times for work permits, discourteous border officials, or frustrations with documentary requirements. But for the most part, business travelers reported that crossing the U.S.-Canada border and obtaining any necessary documents has become increasingly routine, rapid and uneventful; they cited experiences with particularly friendly or helpful officials and close working relationships with officials at some ports of entry. Still, it became clear that the needs of business travelers are changing and there remains substantial scope for improvement. Meeting these new needs of business travelers does not pose a threat to either country’s national security or labor markets and, indeed, offers substantial new economic opportunities in both countries.

Overall, the stakeholders who participated in the roundtables and online comment process demonstrated a high degree of pragmatism and deep understanding of immigration law and the practical constraints of policymaking. As consumers of the border crossing services provided by U.S. Customs and Border Protection (CBP) and Canada Border Services Agency (CBSA), the stakeholders provided invaluable insight into where planning and intergovernmental coordination break down, where processes could be simplified, and what investments could further facilitate cross-border business. They expressed strong support for each of the six action items on business traveler issues identified by the two governments (listed above) and in some cases suggested how these action items could be refined or expanded. Many were also pleased to hear that the Action Plan contains commitments to update and expand investment in border infrastructure and to reduce requirements for cargo screening by adopting a policy of “screened once, admitted twice” under the Integrated Cargo Security Strategy.Footnote 6

Some comments and suggestions were narrowly framed in response to the six actions that the two governments have committed to while other comments went beyond the current focus of the Action Plan. Inevitably, some comments are more actionable than others. Sweeping visions of an integrated North American labor market modeled on the European Union that were proposed by some stakeholders may appeal to some segments of Canadian and U.S. society, but are largely unworkable given current political and economic constraints in both countries. Other recommendations — such as deepening cooperation on skills and professional credential recognition — hold substantial practical promise, but remain a distant objective and do not currently generate active interest from either government. Most stakeholders recognized that in an era of high unemployment, limited public resources, and generalized economic uncertainty in many advanced industrial countries, including the United States, there is little appetite for visionary political projects.

Other comments and suggestions were highly relevant to facilitating cross-border business travelers and to the general business climate in both countries, but are beyond the scope and expertise of this task and report. For instance, participants proposed simplifying income tax withholding requirements;Footnote 7 extending the validity of Canadian passports;Footnote 8 simplifying confusing differences in customs rules and enforcement depending on the direction of travel; and reducing stringent reporting requirements for maritime vessels that cross an international maritime boundary but do not anchor or make landfall. The report authors recommend that DHS and CIC refer these issues to the appropriate authorities within their governments.

In addition, several participants commented on the unique challenges and needs of border communities. Stakeholders representing border communities stated that in some border regions the United States is perceived to be more vigilant about enforcing limits on the goods cross-border travelers are permitted to carry per trip while Canadian customs officials are perceived to be more lenient. In their perspective, this has adversely affected small businesses in Canadian border regions and they recommended that the two countries collaborate more closely on aligning customs enforcement standards and priorities.

Business travelers move between the United States and Canada on a wide range of entry categories. Standard business visitors enter for short periods of time and do not derive a salary or income from destination country sources and therefore do not require work authorization. Individuals seeking to work temporarily in either country require work authorization and include a wide range of workers.Footnote 9 Standard business visitors do not require advance preparations and typically have minimal documentary requirements; obtaining a work permit when one is necessary requires greater preparation in advance of travel. In reality, travelers are often unclear as to whether or not a work permit is necessary.

A review of the key stakeholder recommendations on business traveler issues that seemed actionable and were relevant to the purpose of the consultations follows.

Note on Terminology

Neither the United States nor Canada requires entry visas for citizens (and, in the case of Canada, for U.S. green card holders) seeking to visit the other country. Permanent immigrants to Canada and foreign nationals present in either country present on a temporary basis, including skilled temporary foreign workers, are subject to the same entry requirements as nationals of their country of permanent residence.

Any individual seeking to work in either country must obtain work authorization (known as an Employment Authorization Document in the United States and as a work permit in Canada). In order to obtain work authorization in the United States, it is typically necessary to obtain an immigration status in one of several categories that map onto the country’s visa categories, but is not formally a visa. Documents such as work permits, visas (when applicable), and residence permits do not guarantee entry and border officials (immigration and customs inspectors in the United States and border services officials in Canada) retain the authority to permit or deny admission at the port of entry.

Comments and Suggestions on the Action Plan

A. Standardizing procedures at ports of entry

Stakeholder comments

A recurrent theme was that businesses require certainty in order to ensure the necessary mobility of their employees when they make plans, allocate resources, and undertake risky but potentially profitable business opportunities. However, stakeholders indicated that admissions decisions made by border officials occasionally appeared arbitrary.

For business travelers, uncertainty surrounding how individual immigration and customs inspectors exercise their discretion creates difficulties. They cited examples of business travelers being turned around at ports of entry after a visa had been granted by consular officials; unexpected changes in the supporting documents required from regular border crossers; and inspectors basing decisions on inaccurate interpretations of laws or regulations, particularly at smaller ports of entry, during off-peak hours, by less experienced inspectors, and for individuals entering under infrequent entry classes.

eyond the problem of personal inconvenience and frustrations, delays that result from port-of-entry decisions perceived by stakeholders as arbitrary or unpredictable can result in lost productivity or business opportunities, as well as added costs.

Existing commitments under the Action Plan

Under the Action Plan, the United States and Canada have agreed to three specific actions aimed at facilitating crossings and standardizing procedures at ports of entry, including:

  • Providing enhanced administrative guidance and training to officers and enhanced operational manuals to achieve optimal operational consistency at all ports of entry on business traveler issues;
  • Allowing all categories of business travelers to request adjudication of employment and related petitions by destination country immigration authorities and resolve potential issues prior to travel;
  • Reviewing and improving existing redress and recourse mechanisms for business travelers whose applications are denied;

Many of the stakeholders’ most prominent concerns related to procedures at ports of entry, and they were extremely supportive of these initiatives. To refine or expand these initiatives, stakeholders suggested the following complementary actions:

  • In addition to providing administrative guidance and training to officers, U.S. Customs and Border Protection (CBP) should update and make publicly stronger the sections of the Inspector’s Field Manual (IFM) related to the admission of business travelers. (The Canadian analogue, the Temporary Foreign Worker Manual, is available on CIC’s website.)Footnote 10
  • With respect to the proposal to allow all categories of business travelers to request adjudication of employment and related petitions in advance of travel, the governments should allow business travelers to submit an entry application or supporting documents electronically within a certain time frame (e.g., 24 to 48 hours) in advance of travel and receive a preliminary notification of admissibility or problems with the documents;
  • Efforts to improve redress and recourse mechanisms for business travelers whose applications are denied could be supplemented by having an experienced officer on-call for decision review at each port of entry or by allowing inspectors to consider an explanatory letter from legal counsel outlining complex questions surrounding the admission of a particular traveler.

Possible future actions

Beyond the specific action items already outlined in the Action Plan, stakeholders suggested that the two governments undertake the following:

  • Unify online platforms listing travel requirements by both governments; and
  • Post real-time wait times at land crossings online so travelers can save time by choosing different routes.

B. Expanding preclearance

Stakeholder comments

One of the largest and most visible bilateral U.S.-Canada initiatives to facilitate travel and commerce — the preclearance of travelers and cargo boarding U.S.-bound flights by U.S. inspectors at Canada’s eight major international airports — dates to 1952 and was expanded and formalized through unilateral and bilateral efforts in the 1970s and, most recently, in the 2001 Canada-U.S. Agreement on Air Transport and Preclearance.Footnote 11 Currently pre-clearance is available at eight Canadian airports for flights departing to the United States; the Canadian government has the option to place Canadian border services officers (BSOs) in U.S. airports, but has not done so to date.

Stakeholders were broadly satisfied and noted that having preclearance facilities and direct flights to the United States is a critical competitive advantage for rapidly growing regions of Canada, particularly in the country’s Western and Prairie Provinces. Still, even with a half-century of collaboration, the pre-clearance system is imperfect: Stakeholders noted that the baggage of travelers from Canada transiting at U.S. airports cannot be checked through to a final destination in the US and must be re-screened at the U.S. transit airport. Travelers originating in the United States and transiting in Canada are subject to similar requirements.

Existing commitments under the Action Plan

Under other initiatives within the Action Plan, the United States and Canada have agreed to two specific actions to expand preclearance, including:

  • Expanding immigration and customs pre-clearance to certain U.S.-bound rail, cruise and ferry routes; and
  • Allowing travelers to check baggage through to a final destination when transiting at a U.S. airport without the need to rescreen the baggage by deploying Transportation Security Administration (TSA) approved technology at preclearance airports in Canada ensuring that the procedures for screening U.S.-bound baggage are the same as baggage screening procedures at U.S. airports.

Stakeholders expressed broad satisfaction with these initiatives.

Possible future actions

The only substantive recommendation was to expand preclearance to airports serving rapidly-growing cities in Canada’s far North and West.

C. Clarifying travelers qualifying as standard business visitors

Stakeholder comments

Standard business visitors are the most common category of business travelers between the United States and Canada. Stakeholders expressed some confusion about the types of travelers who qualify as standard business visitors — particularly as business and contractual relationships have become increasingly complex to such an extent that regulatory guidance is increasingly antiquated and does not reflect current business practices or realities.

At the core of whether or not an individual will qualify as a standard business visitor is the question of whether or not the individual will “work” in Canada or “perform skilled or unskilled labor” in the United States in which case he or she would generally not be eligible to enter as a standard business visitor. For example, in Canada, “work” is defined in regulation as “an activity for which wages are paid or commission is earned, or that competes directly with the activities of Canadian citizens or permanent residents in the Canadian labor market.”Footnote 12 In providing guidance on activities that “compete directly” with the domestic labor market, border inspectors and officers are instructed to consider whether the entrant will engage in an activity that “a Canadian or permanent resident should really have an opportunity to do” or “a business activity that is competitive in the marketplace.” There are a number of exemptions to these instructions — including public speakers, convention organizers, news reporters and media, performing artists and athletes, judges and referees, and emergency service providers among others. In the United States there is no single, comprehensive definition of what constitutes “skilled or unskilled labor” for the purpose of business visitor status although there are some regulatory provisions and many Board of Immigration Appeals (BIA) precedent decisions that clarify the question.

Examples of typical business activities admissible for standard business visitors include consultations; negotiations; discussion; research; participation in educational, professional or business conventions or meetings; and soliciting business. However, as many stakeholders noted, the increasing complexity of cross-border travel and business relationships sometimes makes this determination difficult. For example, a client meeting (e.g., in the case of an architect or lawyer) might qualify as a standard business visit or not depending on how compensation is structured.

Stakeholders expressed particular concern about rules in both countries governing the movement of specialized personnel crossing the border to perform repair or maintenance services on machinery. Existing regulations in Canada allow these technicians to qualify as standard business visitors when a machine has been sold or leased by an entity in one country to an entity in another, but when the maintenance or repair services are not linked to a warranty, sale, or lease, then these technicians are considered as competing in the destination-country labor market and therefore do not qualify as standard business visitors and require a work permit. Currently, the United States does not allow technicians to qualify as standard business visitors if they are performing maintenance or repair services under an active lease.

In addition, several stakeholders expressed concern that for many of these technicians, complete copies of the original sales contracts are typically required as documentary evidence to enter as a temporary foreign worker. Often these contracts are confidential and stakeholders fear that requiring employees to carry a copy of these documents in order to obtain a visa may violate confidentiality clauses of the contract or jeopardize corporate intellectual property and privacy.

A final, unique example of regulatory limits to business travel is the case of foreign truck drivers who are not permitted to reposition empty trucks once they have hauled goods across the border.Footnote 13

Existing commitments under the Action Plan

The action items on business traveler issues identified by CIC and DHS under the Action Plan respond directly to some of these stakeholder concerns. On the issue of technicians performing during-lease services, the United States is currently expanding its definition of business visitors to include technicians performing maintenance or repair services under the terms of an active lease (known as “during-lease” services).

On the issue of facilitating the movement of specialized emergency repair personnel, stakeholders applauded these efforts and underlined the importance of speed and predictability when drafting policies on maintenance and critical operations personnel. In the case of emergency repair personnel, CIC offers expedited opinions on whether a labor market opinion (LMO) is necessary. Many companies rely on these opinions; however, stakeholders still expressed concern about the delays that can result from these precautionary steps.

Possible future actions

Beyond these changes and beyond the actions already identified by the two governments, stakeholders recommended that border inspectors be instructed to accept redacted contracts or sworn attestation as evidence of a sale or lease arrangement as long as the information relevant to the admission is available. This would alleviate many of the privacy and intellectual property concerns raised by stakeholders.

More broadly, the stated regulatory objective of preventing direct labor market competition seems antiquated and unnecessary given the level of wage convergence and similarity of working conditions in the United States and Canada. More specifically, stakeholders identified two scenarios where they believe labor market criteria are not meaningful, given how cross-border business relationships have evolved or cause substantial costs and delays:

  • Companies that have integrated U.S. and Canadian operations and do not have designated Canadian or U.S. positions, but rather unified positions that perform services in both countries; and
  • Cases where workers are directly employed by third-party suppliers or contractors in one country, but report to on-site supervisors at facilities in the other country — a practice that is common in the automotive industry.

In addition to these changes, stakeholders suggested that the United States and Canada establish “trusted employer” programs that would allow approved employers access to temporary foreign workers without prior approval if they agree to voluntarily comply with wage and working condition requirements similar to current standards, allow periodic compliance reviews, and accept significant penalties for abuse. Both government representatives appeared interested in exploring this idea.

D. Frustration with the NAFTA Professional Category

Stakeholder comments

The topic of the NAFTA Professionals list is a particularly sensitive one and it came up repeatedly during the consultations and stakeholders insisted that the list has become increasingly outdated and does not reflect current employment dynamics.

Under the terms of NAFTA, for those professions included on a negotiated list, the United States, Canada and Mexico agreed to allow professionals from member countries to work throughout the region without the need for economic needs/labor market tests. The signatories agreed to meet on an annual basis and to consider proposed modifications or additions to the chapter on temporary entry, but over time these meetings have lapsed. As a result, a number of the occupations on the list are outdated or have since evolved and require updating.

For example, the computer and internet technology industry has undergone dramatic changes since the 1990s — many of today’s most important occupations did not exist and are not specifically listed. Some stakeholders suggested that computer software engineers and operations research analysts be accommodated under the title “engineer” or “computer systems analyst.” In some cases, the occupations on the list have been interpreted so narrowly as to exclude high demand occupations — for example, the list includes accountants and economists but does not include finance experts. It includes engineers but not if they work in a management or supervisory role overseeing engineering operations. Management consultants qualify for admission as a NAFTA entrant if they are employed as independent contractors or by a foreign company under contract with a domestic firm; however, they do not qualify if they are directly employed by the destination-country firm. Other occupations omitted from the list require extensive tacit or soft skills although not professional degrees — for instance sales and marketing managers.

More broadly, stakeholders seemed frustrated that managers are largely excluded from the NAFTA occupations list and, for the most part, the list requires that NAFTA professionals hold a university degree which overlooks an important sub-segment of employees who may not have a university degree but who have long tenures with a company.

Existing commitments under the Action Plan

The Action Plan does not address stakeholders’ concerns regarding the NAFTA Professionals list.

Possible future actions

The question of when and how to update the NAFTA occupations list is difficult for both governments. Any changes to the list, beyond mere changes to interpretation of the existing list, would require trilateral negotiations including Mexico in addition to the United States and Canada as well as subsequent legislative and/or regulatory action, as determined by each country’s laws. As an alternative, stakeholders strongly recommended that both countries engage the topic by agreeing to broad rather than narrow interpretations and through an operational/administrative updating of definitions to reflect market realities. Further stakeholder consultations or comments may be necessary to identify exactly which occupations require reconsideration.

On a more operational level, stakeholders suggested that DHS allow individuals to submit applications for NAFTA work permits to regional processing centers in advance of travel rather than requiring that these applications be adjudicated at ports of entry as is currently standard practice. As part of the Beyond the Border initiative, DHS announced on September 28, 2012 that it has revised its procedures to now accept filings for Canadian NAFTA professionals in advance of their travel to the U.S. port of entry. This enables these individuals to obtain evidence of “pre-approval” for NAFTA Professional classification, which can be presented to DHS officials when making the application for admission to the United States. As before, Canadian citizens continue to have the option of applying for NAFTA Professional classification directly at the port of entry in conjunction with an application for NAFTA Professional admission to the United States.

E. Difficulties moving some employees not covered under NAFTA

Stakeholder comments

Stakeholders noted that it is relatively easy to move senior employees for temporary assignments in either country — for instance as intra-company transferees when a company has a legal presence in both countries, or as individuals with specialized, firm-specific knowledge or ability.Footnote 14 However, companies also value mid-level or early career employees who often represent a long-term corporate investment in a young worker’s training or experience; it is much more difficult for companies to move these mid-level or early career employees since they rarely qualify as intra-company transferees.

Similarly, there is a substantial presence of skilled immigrants from other parts of the world residing in both the United States and Canada who work for small and large companies (particularly in the internet technology industry). Stakeholders noted that moving these workers between countries is challenging when the employee is not a citizen of the United States or Canada and has either temporary or permanent immigration status in one of the two countries. In particular, the United States requires an entry visa for permanent immigrants to Canada. Allowing immigrants residing in either country on a temporary status to enroll in trusted traveler programs such as NEXUS for the duration of their temporary status would substantially facilitate the cross-border conduct of business while still allowing both governments to ensure that these individuals comply with the terms of their entry and stay.

Existing commitments under the Action Plan

The Action Plan does not address stakeholders’ concerns regarding the movement of early- and mid-career employees or temporary skilled immigrants from other parts of the world.

Possible future actions

To respond to these concerns, stakeholders recommended that both governments explore ways to make the following reforms:

  • Expand temporary assignment options for early- and mid-career professionals moving with a company; and
  • Eliminate visitor visa requirements for certain categories of skilled immigrants with temporary residence permits in the United States (e.g., H-1B workers) or Canada whose country of permanent residence requires a visa to visit either country.

F. Trusted travelers

Stakeholder comments

One of the more visible efforts to facilitate travel between the United States and Canada has been the establishment of a trusted traveler program, known as NEXUS, which was launched in 2002 and which now has over 750,000 participants enrolled.

Through NEXUS, citizens and permanent residents of the United States and Canada may register for a special travel identity document by submitting biographic and biometric information (iris scans), passing a criminal background check, and paying a registration fee.Footnote 15 A NEXUS membership card allows travelers to access expedited crossing lanes (at land border crossings), dedicated kiosks (at airports), and telephone reporting (for marine crossings). Since NEXUS members have already submitted personal information to both governments, they are subject to reduced customs and immigration questioning.

Stakeholders reported mixed experiences using NEXUS. Many agreed that NEXUS enrollment facilitates travel, but the benefits are perceived as limited relative to costs. Some participants noted that dedicated NEXUS member lines at border crossings and airports are often closed (even during business hours) or can be as long as the lines for non-members. Many did not notice any reduction in questioning by immigration and customs inspectors and, indeed, some felt like they were subject to additional questioning because of their NEXUS membership. Many participants also complained of long wait times for NEXUS membership applications.

Beyond these doubts about the tangible benefits of NEXUS membership, stakeholders reported that some business travelers who could benefit substantially from participation in NEXUS are barred from admission due to minor criminal offenses or misdemeanors that date back decades. However, in 2008, both governments implemented a policy granting officers discretion for certain minor criminal offenses. Both Canada and the U.S. also offer an individualized appeals process for a rejected application or cancelled membership. In addition, in March 2012, Canada implemented a public policy allowing for the discretionary issuance of a one time, fee exempt Temporary Resident Permit for those who have been convicted of certain criminal offences, but received no jail time. The intention of the policy is to facilitate temporary entry and encourage foreign nationals to become more aware of recourse mechanisms under Canadian immigration law.

Stakeholders also expressed satisfaction with some NEXUS services. Notably, Canadian authorities recently began allowing NEXUS members to use expedited security lines when boarding US flights — as opposed to only Canadian domestic flights — at an airport where NEXUS services are available. Users were extremely satisfied with this policy change. Under the Action Plan, the U.S. Transportation Security Administration (TSA), through the TSA Pre™ program, extended a similar benefit on November 15, 2012 to NEXUS members traveling on U.S. domestic flights.

Existing commitments under the Action Plan

Under the Action Plan, the United States and Canada have agreed to “develop and implement specific approaches to incorporate designating documents onto the NEXUS client profile for predictable, expedited clearance.” Stakeholders were receptive to these plans, but indicated that other improvements to NEXUS could yield greater results.

Possible future actions

Beyond existing commitments, stakeholders recommended the following:

  • Establish an appeals process for NEXUS applications in the United States, allowing some discretion on criminal background;
  • Allow NEXUS cardholders to use dedicated NEXUS security lines when boarding U.S.-domestic flights;
  • Offer expedited processing of NEXUS applications for a fee; and
  • Permit NEXUS members to enroll in periodic email updates providing information on changes to services or regulations, such as hours for dedicated lines or kiosks and changes to lists of prohibited food items.

Future private-sector engagement

Stakeholder comments

Both CIC and DHS expressed an interest in receiving feedback from stakeholders on how best to continue the dialogue between the private sector and governments on business travel issues. Stakeholders were very appreciative of the opportunity to comment on the initiatives contained within the Action Plan and to propose ideas for future action. The presence of both governments at the consultations was viewed as particularly conducive to constructive dialogue. There was no clear consensus as to whether in-person or online consultations are preferable; however, all underlined that sufficient advance notice is necessary.

Existing commitments under the Action Plan

Beyond an expression of interest in maintaining an ongoing dialogue with the private sector, there are no concrete commitments in the Action Plan on this topic.

After Beyond the Border

Responding to the most actionable suggestions made by stakeholders will require building upon longstanding bilateral cooperation and collaboration between the United States and Canada. On balance, stakeholders seemed to embrace the aims of the Beyond the Border Action Plan, and particularly the six specific actions to facilitate the movement of business travelers that the two governments have identified as priorities. The Action Plan will likely have a meaningful impact on many businesses and cross-border travelers in both countries. In this sense, the Action Plan builds upon a long legacy of bilateral initiatives to gradually improve the flow of goods and people across the US-Canada border while protecting national security and maintaining autonomy in policymaking.

Still, some stakeholders criticized the plan as having narrow objectives and lacking an ambitious long-term vision — particularly with respect to business travel that extends beyond a short period of time or involves cross-border remuneration or contractual relationships. Should policymakers wish to build on or move beyond the Action Plan, both governments would have to remain flexible and open to policy innovation. Cross border mobility is likely to grow in the years ahead and these movements will increasingly challenge traditional distinctions enshrined in both Canadian and U.S. law and regulation regarding short-term visitors, temporary workers and permanent immigrants. More pragmatic immigration policies on both sides of the border with respect to business travelers could contribute to further cross-border mobility that could contribute to economic growth in both countries.

Multiple stakeholders noted that living standards in the United States and Canada are so similar that many of the concerns about wage competition or adverse impacts on working conditions — the underlying logic for labor market protections associated with temporary (and permanent) foreign worker entries — have become increasingly anachronistic. In a bilateral economic environment where there is increasingly seamless integration of business operations, markets, customer expectations and competitive challenges, these regulatory barriers are meaningless for many businesses, except when they cause problems. Further facilitating cross-border mobility by businesses that agree to comply with wage and labor condition requirements and allow periodic monitoring may be a promising direction for future collaboration.

In addition, such business travelers overwhelmingly do not represent a threat to either country’s national security. In many instances, travelers have volunteered personal information verifying who they are and their motives for travel. Existing technology allows them to be identified with minimal delay.

In both countries there are legitimate concerns about the collection and sharing of personal information by the two governments. The United States and Canada have similar traditions and legal protections regarding personal data and information security, although some differences do exist. (The two countries have worked to reconcile these differences under the Action Plan.Footnote 16) These differences need not impede progress in facilitating the movement of travelers. Existing voluntary programs such as NEXUS provide a promising platform for expanding the pool of travelers who are known entities to both governments and should be able to rapidly pass through ports of entry.

Finally, both governments’ representatives seemed interested in maintaining an ongoing dialogue with the private sector on these issues. Stakeholders who attended the consultations all applauded the initiative and urged similar, regular consultation and feedback opportunities.  Identifying mechanisms to receive feedback from consumers of border-crossing services — in this case, the companies whose workers travel and the human resource managers and lawyers who oversee the process — would contribute to the flexibility necessary for policy to respond to an ever-evolving, dynamic, highly competitive cross-national and international business climate.

Appendix

Participants in Washington, DC Consultations

  • AECOM Technology Corporation
  • American Council on International Personnel
  • American Immigration Lawyers Association
  • Citigroup, Inc.
  • Ericsson, Inc.
  • Microsoft Corporation
  • U.S. Chamber of Commerce
  • Worldwide ERC

Participants in Toronto, ON Consultations

  • BDO Canada
  • Canadian Bankers Association
  • Canadian Council of Chief Executives
  • Canadian Employee Relocation Council
  • Canadian Manufacturers and Exporters
  • Canadian Trucking Alliance
  • Global Business Travel Association Canada
  • IBM Canada
  • Information Technology Association of Canada
  • Maple Leaf Foods
  • Microsoft Legal and Corporate Affairs Group
  • Nexen, Inc.
  • Sun Life Financial

Individuals and Organizations Submitting Written CommentsFootnote 17

  • American Chamber of Commerce in Canada
  • American Council on International Personnel
  • Canada Training Group
  • Canadian Association of Importers and Exporters
  • Canadian Association of Defence and Security Industries
  • Canadian Employee Relocation Council
  • Canadian Federation of Independent Businesses
  • Canadian Manufacturers and Exporters
  • Canadian Trucking Alliance
  • Canadian Vehicle Manufacturers’ Association
  • FLOWCARE Engineering, Inc.
  • Fort McMurray Airport Authority
  • Global Business Travel Association
  • IBI Group
  • Pat Davidson, M.P., Sarnia-Lambton, ON
  • Microsoft Corporation
  • National Airlines Council of Canada
  • National Association of Manufacturers
  • Pace Law Firm
  • Research In Motion, Ltd.
  • University of Windsor
  • U.S. Chamber of Commerce
  • West Coast Artisan Foods
  • Westcast Industries, Inc.
  • Worldwide Employee Relocation Council

Related information:

Footnotes

Footnote 1

The complete Action Plan is available at www.actionplan.gc.ca/border and www.dhs.gov/beyond-the-border.

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Footnote 2

In addition to Secretary Napolitano and Minister Kenney, senior officials from both agencies participated in the roundtables, including Citizenship and Immigration Canada (CIC) Associate Deputy Minister Peter Sylvester and Department of Homeland Security (DHS) Assistant Secretary David Heyman who participated in both meetings.

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Footnote 3

The Migration Policy Institute (MPI) is a non-partisan think tank that provides analysis and evaluation of migration and mobility policies at the local, national and international levels. For further information, see www.migrationpolicy.org.

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Footnote 4

Data from the U.S. Department of Commerce, Bureau of Economic Analysis, National Income and Product Account Tables, www.bea.gov/iTable/index_ita.cfm.

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Footnote 5

Circular migration, keeping development rolling. Graeme Hugo, University of Adelaide, IOM. 2008.

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Footnote 6

For additional information on the Integrated Cargo Security Strategy, see www.cbsa-asfc.gc.ca/agency-agence/consult/bccc-ccacf/newletter-bulletin/02-eng.html#c1x3.

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Footnote 7

For a review of the issue, see Association of Corporate Counsel (ACC), Cross-Border Tax Concerns: Canada-U.S. (Washington, DC: ACC, 2011), www.acc.com/legalresources/quickcounsel/fpttcutt.cfm?makepdf=1.

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Footnote 8

Some stakeholders recommended that Canada extend the validity of its passports from five to 10 years. Currently, the United States will not admit business travelers whose passport has less than six months validity remaining, which means that Canadians who travel regularly to the United States must renew their passports every 4.5 years. (U.S. passports are valid for 10 years.)

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Footnote 9

A more complete list of visa available to business travelers entering the United States, see www.travel.state.gov/pdf.BusinessVisas.pdf. For more detailed information on business travelers entering Canada, see http://www.cic.gc.ca/english/work/special-business.asp.

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Footnote 10

Citizenship and Immigration Canada, 2010. “Performance Measurement and Evaluation Plan: Regulations Amending the Immigration And Refugee Protection Regulations (Mexico).” Internal document.

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Footnote 11

The Inspector’s Field Manual outlines agency policies and practices and older versions are currently publicly available as a result of Freedom of Information Act (FOIA) requests. Customs and Border Protection (CBP) has posted the FOIA document on its website, but it has not been voluntarily published by the agency. Stakeholders conveyed an understanding that parts of the IFM might be justifiably protected from public release, but that the sections relative to business travel were unlikely to contain sensitive information.

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Footnote 12

Preclearance at Toronto’s international airport was launched in the 1950s at the request of American Airlines. See Parliament of Canada, “Proceedings of the Standing Senate Committee on Foreign Affairs,” Evidence 28, February 17, 1999, www.parl.gc.ca/Content/SEN/Committee/361/fore/28ev-e.htm?comm_id=8&Language=E&Parl=36&Ses=1. The text of the 2001 agreement is available at www.state.gov/documents/organization/129530.pdf.

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Footnote 13

Citizenship and Immigration Canada, “5.1 Overview” and “5.2 Work without a work permit R186(a)—Business visitor,” in Temporary Foreign Worker Guidelines, Updated June 15, 2012, www.cic.gc.ca/english/resources/manuals/fw/fw01-eng.pdf. For the United States, see Customs and Border Protection, Inspector’s Field Manual, unpublished.

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Footnote 14

Several stakeholders raised concerns about the limited duration of visas for intra-company transferees (L visas in the United States), who are allowed by law a maximum of seven continuous years after which they typically must spend time abroad. Companies that rely on these visas to move high level executives and managers argued that these limits interrupt overseas assignments and cause administrative challenges.

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Footnote 15

A complete description about NEXUS benefits and requirements is available at www.cbp.gov/xp/cgov/travel/trusted_traveler/nexus_prog/ and www.cbsa-asfc.gc.ca/prog/nexus/menu-eng.html.

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Footnote 16

See Beyond the Border Action Plan Statement of Privacy Principles by the United States and Canada, May 30, 2012, www.dhs.gov/xlibrary/assets/policy/beyond-the-border-action-plan-statement-of-privacy-principles.pdf.

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Footnote 17

This list includes only individuals and organizations submitting comments to CIC and granted CIC permission to publicly release their information. Written comments submitted to DHS are not included on the list. Some comments were joint submissions of several organizations.

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Reports and statistics

 
 
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