Editor’s note: This post is adapted from a recent webinar that Espresso co-hosted with PwC Law LLP.
If you’re a Canadian startup, there’s a good chance that at some point you’ll consider either expanding into, or relocating some of your resources to, the United States. And while doing so doesn’t have to be difficult, you still need to jump through various hoops to travel to, and do business with, our neighbors to the south. The fact is that although the US immigration system can be challenging, as long as you know how to navigate it, taking advantage of the benefits that come with transferring staff stateside isn’t as hard as you might think.
Still, as regulations and policies tighten under the Trump administration, it’s important to be aware of your options. Equally important is ensuring that your business is always compliant so as to minimize any potential disruption to your operations.
Let’s take a look at what you need to know to successfully navigate the US immigration system.
Choosing the right type of visa
The US immigration system is effectively a patchwork of different visa categories and options, each with its own benefits, drawbacks, and specific requirements. For Canadian startups looking to send employees to the US, there are three types of visas that are most relevant. They are:
- E visas. If you want to open up an office in the US and be able to stay for longer periods of time, or send your employees there, then E visas are a good option. Essentially, what you’re doing is establishing that you have substantial business with the US and that you want to expand on that. But you’re not limited just to that. Even if your initial objective isn’t to make large expenditures, or to open up an office right away, the E visa could still make sense for you.
- L-1 visas. The L-1 visa provides additional flexibility if you have an office in Canada or elsewhere, and you have staff who have been with that office for over a year. If that’s your situation, you can use the L-1 visa to transfer your staff to US operations. The L-1 is meant to transfer existing staff who have already been working for your organization outside of the US, and who have specific organizational knowledge or manage critical functions, into the US to expand operations there.
- H1-B visas. The H1-B is a more general visa for professional workers; however, it does have a quite rigid educational requirement. It’s a non-immigrant visa that allows US companies to employ graduate level workers in specialty occupations that require expertise in specialized fields such as IT. Bt there’s also a catch: There’s a cap on the H-1B visa, which means it could be difficult to secure.
It’s really important to be aware that the US-Mexico-Canada agreement (USMCA) is essentially the same as the North American Free Trade Agreement (NAFTA), especially when it comes to labor provisions. Although when NAFTA was implemented, one of its goals was to facilitate the movement of professional workers across the borders of the US, Mexico, and Canada, under USMCA, each country can interpret those provisions according to its own policies and national priorities.
The Cannabis Act is another important consideration to have on your radar. Although marijuana is legal in Canada and in a number of US states, that doesn’t mean it’s safe to bring across borders. If you’re traveling from Vancouver to Seattle, for example, (two places where marijuana is legal), the substance is still illegal on a federal level, meaning that bringing it into the US would be a crime. So, when you or your employees are planning your next visit to the US, make sure to never bring any amount with you to ensure you’re not violating the law.
How to make it work
The most important thing to keep in mind is that it’s critical to stay abreast of the changes in immigration law. It’s a constantly changing frontier, so if you want to strategize and come up with plans for your business while ensuring that they’re executed as smoothly as possible. Staying up to date on what’s happening is therefore critical. When in doubt, seek legal advice to ensure that your work in, or expansion to, the US runs smoothly. If you know what the immigration landscape looks like and know what to expect, you’ll be ahead of the game.