New Immigration Issues for Corporate Counsel
" Canadian Executives Menaced at US Border Crossings" - "1200 Canadians Arrested at US Border." If headlines like these were not worrisome enough, consider this one "Canadian Firm Sued for Encouraging Employees to Breach Immigration Regulations."
While the last headline is fictitious, the practice is widespread. Therefore, in the near future, it is likely that employers will be sued for encouraging an employee to misrepresent the purpose of a business trip. Two scenarios are provided for illustration:
The court has long held that an employer may be liable for the illegal actions of an employee acting within the scope of their duties. Recent developments in US immigration now clearly raise the possibility of legal liability on the part of corporations whose employees are induced to breach immigration laws to the employee's detriment.
Forms of inducement might range from express instruction from a supervisor to misrepresent the purpose of a business trip to a subtle suggestion to "cut the red tape," when crossing into the US. In a recent contracts case, Kilpatrick v. Peterborough Civic Hospital the court held that an employer was liable for damages where there was "implied inducement." The court called this a "wink wink, nudge nudge" situation.
Numerous newspaper articles have appeared in the press over the last year detailing the difficulty business travelers to the US are encountering. Most notable are the accounts of senior executives detained for rigorous questioning, found inadmissible for misrepresentation and then banned from entering the US. INS computers can also capture employer information from such incidents which could cause difficulties for other company employees entering the US thereafter.
If a banned employee sued his employer and the corporation was found liable for inducing such misrepresentation, the cost of litigation could be substantial. Consider the economic loss which might be sustained by a senior executive pressured to enter the US illegally on the corporation's business who is caught, found inadmissible and whose employment prospects thereafter are severely limited by his inability to enter the US.
In addition to civil liability, the US Immigration and Nationality Act provides for numerous employer economic and penal sanctions for aiding and/or abetting any breach of the Act.
In most circumstances, human rights legislation prohibits inquiries concerning health, criminal records, etc. While it would not be permissible to inquire into the specific nature of the impediment to foreign travel, it would be permissible to ask whether prospective employees are legally able to travel for business purposes if they are required to do so on behalf of the corporation.
Human Resource personnel should be aware of the most common grounds of inadmissibility to the US in order to shape appropriate policies and procedures.
GROUNDS OF INADMISSIBILITY Corporate Counsel should be aware of the most common grounds of inadmissibility to the US in order to establish appropriate policies and protocols.
Employees who fall into any of the above categories may not be able to enter the US on behalf of an employer unless they obtain a waiver. The waiver procedure can be lengthy and a waiver is not always available.
the movement of employees across borders is critical to the success
of companies engaged in international business activities. Clearly,
immigration regulations must be a strategic consideration for any
corporation with a foreign subsidiary, affiliate, or branch. Even
corporations carrying on business in a single national jurisdiction
but engaged in buying or selling product or services internationally
must take precautions. A thorough audit of current corporate immigration
procedures should be conducted as a timely and inexpensive alternative
to a host of potentially serious problems.