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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

New Immigration Issues for Corporate Counsel
by Catherine Kerr

" 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:

SCENARIO ONE

  • An employee is sent to the US for three weeks to resolve serious implementation problems at a client's office in New York;
  • She must be in New York tomorrow;
  • When she asks her manager about a visa - she is told "you don't need one, just say you are going for meetings;"
  • She reluctantly agrees but is nervous about lying. When questioned by INS at the airport, they become suspicious. She is interviewed at length and the contents of her briefcase are searched;
  • INS concludes that she misrepresented a material fact and finds her "inadmissible;"
  • The finding of inadmissibility means that she is barred from entering the United States, possibly for life;
  • A stamp is put in her passport and an INS file is created.

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.

SCENARIO TWO

  • The employee in the first scenario is subsequently hired by your firm;
  • At the time she was hired, she was not asked about her ability to travel abroad;
  • The company operates a branch office in Dallas;
  • The employee discloses her inadmissibility problem when she is asked to transfer to the Dallas office;

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.

  • Health-related grounds Persons determined to have communicable disease of public health significance are inadmissible. HIV and certain tubercular conditions are specifically included in this section.

  • Criminal grounds
    A person who is convicted of any crime of moral turpitude or persons who have committed but have not been convicted of such a crime are inadmissible. Persons who are convicted of two or more criminal offences other than crimes of moral turpitude may be inadmissible depending on the sentence. A conviction is defined to include probation, foreign pardons and other forms of deferred sentences such as absolute discharges. Therefore, a crime committed in Canada and subsequently pardoned is still a conviction for INS purposes.

  • Misrepresentation
    A person, who seeks a visa or other grant of entry (such as a Canadian citizen who does not require a visa) through fraud or willful misrepresentation of a material fact, is inadmissible and is subject to expedited removal proceedings.

  • Illegal presence
    Persons who, in the past, were unlawfully present in the United States for more than 180 days may be inadmissible for periods from three to ten years. This class of persons could include simple overstays to failed refugee claimants in certain circumstances.

  • Student Visa Violations
    A person is inadmissible if he or she obtains a student visa and violates a term or condition of the visa.

  • Substance abuse
    Persons are inadmissible if they are determined to be "drug abusers." Drug abuse is defined as the "non-medical use of a substance listed in s202 of the Controlled Substances Act which has not necessarily resulted in physical or psychological dependence." The listed substances cover a broad range of drugs including marijuana and other "soft" drugs. Therefore, even a person who has used marijuana but never charged or convicted could still be found to be inadmissible.

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.

In summary, 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.


Copyright 2000 ILW.COM, American Immigration LLC.


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