Over the past few months, I have written about the issues faced by Canadian carriers who establish trucking operations in the U.S. Last month the focus was on "green cards," which provides U.S. landed...
Over the past few months, I have written about the issues faced by Canadian carriers who establish trucking operations in the U.S. Last month the focus was on “green cards,” which provides U.S. landed immigrant status and the right to live and work in the U.S. permanently.
This segment focuses on the temporary or indefinite visas associated with the motor carrier industry. Again, with some rather limited exceptions, drivers are not eligible for temporary “work visas.”
It is perhaps technically incorrect to refer to a work visa in connection with Canadian citizens. Canadians are exempt from the requirement to produce a passport upon entry to the U.S. – similarly they are not required to have a visa for most purposes.
In cases where an entry document is required to show eligibility as a visitor, or for work authorization, Canadian citizens usually only receive an entry document called an I-94 card, which specifies the status of the individual and the maximum duration of entry to the U.S.
The most common types of temporary visa/entry categories within the trucking industry are as follows:
L-1 transferee visa: a useful tool for transferring managers and executives from the Canadian office to a newly established or existing affiliated office in the U.S. I have seen many instances of drivers receiving erroneous legal advice with respect to this type of visa.
Since many owner/operators are incorporated and have the title of president, they are told they can transfer themselves to become president of the U.S. company, merely by incorporating a new business in the U.S. This will never be effective for a number of reasons.
First, the L-1 visa was not designed for one-person organizations, and the individual must show business operations will continue in Canada after the transfer of the person to the U.S. Also, the L-1 visa category is for managers and executives, and would not pertain to an individual whose duties primarily consist of driving. There is a related L-1 category for non-managers who have unique, proprietary or “specialized knowledge” regarding the business methods or operations of the company, necessitating a transfer to the U.S. affiliate. Again, driving duties are not deemed to qualify for this specialized knowledge category.
E-2 investor visa: for individuals who are making a significant investment south of the border. Given the large investment normally required to become an owner/operator, I am often asked if they qualify.
Unfortunately, the answer is usually no. The primary reason is that the visa is designed for investors who are directing and controlling an investment in the U.S. enterprise, or for managers and essential workers of the enterprise. It is not intended for self-employment.
If a person’s duties are primarily driving, they will not qualify for the E-2 visa. The category has been used for trucking companies, however, as long as the investor is hiring U.S. drivers and other personnel with the intention of managing the business.
H-2B temporary worker: for temporary workers filling positions that are in short supply in the U.S. It is the only visa category that has some genuine applicability to the Canadian driver market, but it comes with some limitations. One is the application procedures can often last two to three months. It is best utilized by a U.S. carrier who has a periodic or seasonal need for drivers so it can prepare for it in advance.
Whether looking at green cards or temporary work permits, Canadian drivers are not the answer for U.S. operations. The Canadian carrier who desires to set up operations in the U.S. will have to look to the U.S. labor market to fill its needs. n