We have an employee in Canada who intends to spend two weeks per month (for the next 6months) in the US to help with a project. I figured for such a short duration that a work visa would not be required, but our legal counsel suggests this may not be the case. Anyone have any insight?
Thanks!
I’m not an expert, though I have had a temporary employment visa to work in the US. My impression is that you need a visa (or be a US citizen or permanent resident) to work in the US, and that if you come without proper authorisation you can be denied entry or deported. I don’t think the duration matters – but in this case, the total duration is 3 months, which is significant.
I think this is based on who you are working for. If the Canadian is working for the Canadian office, drawing a Canadian salary, it probably isn’t going to be an issue if they assist in the United States as a regular visitor. You are allowed to visit the United States for business.
That said, it can be a little unclear where the line that separates legitimate business from US employment is, and only drawing a Canadian salary is not the only factor. This PDF document from the US Department of State gives some general guidelines about business visitors:
[QUOTE=US Department of State]
a. Aliens who desire to enter the United States for business and who are otherwise eligible for visa issuance, may be classifiable as nonimmigrant B-1 visitors provided they meet the criteria described in 9 FAM 41.31 N8 through 9 FAM 41.31 N11. Engaging in business contemplated for B-1 visa classification generally entails business activities other than the performance of skilled or unskilled labor. Thus, the issuance of a B-1 visa is not intended for the purpose of obtaining and engaging in employment while in the United States. Specific circumstances or past patterns have been found to fall within the parameters of this classification and are listed below.
b. It can be difficult to distinguish between appropriate B-1 business activities, and activities that constitute skilled or unskilled labor in the United States that are not appropriate on B status. The clearest legal definition comes from the decision of the Board of Immigration Appeals in Matter of Hira, affirmed by the Attorney General. Hira involved a tailor measuring customers in the United States for suits to be manufactured and shipped from outside the United States. The decision stated that this was an appropriate B-1 activity, because the principal place of business and the actual place of accrual of profits, if any, was in the foreign country. Most of the following examples of proper B-1 relate to the Hira ruling, in that they relate to activities that are incidental to work that will principally be performed outside of the United States.
[/QUOTE]
When it comes to figuring out what the heck that would mean in your specific case, it is as clear as mud. I suppose it would depend on the specific nature of the work performed. It seems to imply incidental work related to selling or installing a product that is primarily produced overseas, but that in itself is not very clear - in a modern international company I am not sure what “primarily produced overseas” would even mean!
It sounds like running this through your legal counsel was a good idea, they probably have some practical experience that will provide more concrete guidelines than the documentation. I’d be curious how companies handle this in general - this must come up all the time!
Maybe this is the answer:
It is a little more complicated then that, as the interpretation of “conducting business” will define whether you are here on a legitimate business trip or if you are illegitimately working without authorization in the United States. It is an irritatingly unclear definition.
As the person is Canadian they probably won’t need a B-1 visa anyway, but I imagine the rules for visiting as a business person are similar to the B-1 (not that I recommend depending on the active imaginations of anonymous internet posters over legal counsel!).
I’m still not sure what the “real” answer is, but there are a variety of official websites that seem to indicate that a visa is not required for temporary visitation (to attend meetings, conferences, etc.)
http://www.consular.canada.usembassy.gov/business_canadians_usa.asp
It’s probably intentionally vague so they can harass shifty-looking visitors!
My guess is that if you are working and being paid by a foreign employer then you are on a legitimate business trip whereas if you are working for and being paid by a US employer then you are … working for a US employer. Of course, the only way to know for shure is to consult with a specialist.
In practice, I agree. In a case like this Canadian I think it is unlikely that there will be issues and grilling about the precise details (“What?! You filled out a TPS report?! That’s not business, that’s skilled labor! Out!”) of the work. Still, it may be helpful to be careful about what sort of work you do, and to accentuate the business-like aspect of it if asked. 
You really need to deal with an immigration lawyer on this. But my offhand suggestion is, if the employee qualifies based on their skill set, get them a TN visa. Cheap and easy.
IANAL, but I do this stuff (including TN petitions) for a living. The short answer is that there’s no way to give you an accurate long answer without knowing the details of what the person will be doing. It’s not dependent on the person’s duration of stay. And yes, the definition of “work” vs. “meetings” or whatever can be very hazy.
Eva Luna, Immigration Paralegal