The Canada Institute launched the 16th issue of its One Issue, Two Voices series in Toronto on May 22, 2013. Addressing the problem of executive labor mobility, the publication and the panel addressed the barriers that professionals face when crossing the Canada-U.S. border on business. The moderator, Eileen Martin, who has extensive experience in immigration law as well as at border crossings as a customs agent, discussed the reality of what happens at the border; the two authors discussed the challenges faced by their members.

Martin acknowledged that border officers are there “to stop bad guys”; they are not there to facilitate commerce. She described business facilitation as a “pocket of adjudication in a sea of enforcement.” There will be biases, she noted, and there is no way to fix it. While a “Trusted Employer” program is a good concept in theory, it will not be as easy to implement as some might hope, particularly since there have been problems with student visas with the “trusted schools” program.

Lynn Shotwell said that crossing the border between Canada and the United States works better than almost anywhere, but there is room for improvement. Global companies have built extensive human capital supply chains and they need to deploy talent quickly to deliver products and services around the world. Businesses look for efficiency, transparency, and predictability; time is money, and businesses have no patience for laws that have not kept up with the economy. Predictability in getting authorization for professional employees to work in Canada and the United States is often so difficult that companies will often fly people to known border crossings, rather than the deal with the unknown. Pre-adjudication is fine for some employees, but it does not work for important, last minute travel. Due to Canada’s reduced consular presence in the United States, it is often easier to send an employee back to China or India for a visa than to wait in North America.

Stephen Cryne stated that the status quo in border management is not working. The list of NAFTA occupations is outdated and various logistical challenges arise from one crossing, one officer, and one day to the next. Cryne recommended better consistency at the border with an increased level of training for border officers, and the implementation of a trusted employer program that would deal with risk management. The current trusted shipper program could serve as a model. While he advocated for an expanded TN list, adding occupations is unlikely and he noted that there is no interest in opening NAFTA from the three NAFTA governments.

Martin reminded the audience that border crossing is a matter of national security, and that the border agencies in the United States and Canada carry out what Congress and Parliament have told them to do.  The authors were not recommending taking security authority away from border officers, but leaving the determination of skills to the company involved.

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  • Eileen Martin

    Partner, Immigration Practice Group and Canada/U.S. Cross-Border Practice Group, Hodgson Russ LLP
  • Stephen Cryne

    President, Canadian Employee Relocation Council
  • Lynn Shotwell

    Executive Director, The American Council on International Personnel