It has been fairly well established that employee drivers for Canadian trucking companies cannot obtain work permits to enable the driver to make a point-to-point deliveries in the United States. But...
It has been fairly well established that employee drivers for Canadian trucking companies cannot obtain work permits to enable the driver to make a point-to-point deliveries in the United States. But what about owner/operators? Can’t they be considered business owners or managers who are eligible for a U.S. immigration visa? The question is a good one because temporary work visas and even green cards are available in some circumstances to Canadian owners, manager and executives for U.S. companies.
Unfortunately, the answer is “No.”
It is the job duties, not the job title, that ultimately determine visa eligibility. Job duties that predominately or exclusively involve driving are not considered managerial in nature.
Furthermore, the concept of “manager” does not translate well to a one-person organization, and the relevant U.S. visa categories are not available to situations that may look like they involve employment by a company, but which in reality are merely self-employment.
There are two U.S. Immigration visa categories that are often used to obtain U.S. work privileges for Canadian workers. Neither one of them is applicable to the typical owner/operator situation.
The L-1 visa is for transfers of executive, managerial or “specialized knowledge” personnel to an affiliated U.S. company. Even in situations where the owner/operator has incorporated, and serves as president of the corporation, U.S. Citizenship and Immigration Services (USCIS) will view the job position as that of a driver, not as a manager or executive.
Furthermore, driving skills are not considered to be “specialized” (requiring proprietary knowledge) and the typical owner/operator would not be able to convince the USCIS that the job duties involve skills for this particular employer that are not found broadly within the transportation industry.
The L-1 visa also requires a transfer of personnel from the Canadian company to the U.S. company, which implies a substantial enough organization to show continuing business operations in Canada and newly established operations in the U.S. The L-1 visa is designed for “multi-national” companies and not for self-employment in the U.S.
We have used the L-1 visa numerous times to help Canadian motor carriers establish operations in the United States. The visa has been issued to executive officers, general managers, terminal managers, operations managers, fleet managers, etc., but never to an employee who is solely a driver for the company.
Companies who have been successful in establishing U.S. operations through the transfer of L-1 managers, have done so through the hiring of U.S. drivers or owner/operators.
The second alternative is the E-2 Investor Visa. The E-2 visa does not involve a transfer of personnel, and does not require the existence of a Canadian affiliated company. The E-2 visa can be used by entrepreneurs who wish to acquire or establish a new business in the United States, without having or retaining any ties to a Canadian business.
At one time, there was an informal guideline that necessitated a $100,000 minimum investment, but current rules have no minimum.
The investment has to be significant enough to have some job creation or other economic impact in the United States, and a substantial portion of the investment must be from the investor’s own funds.
If the investment qualifies, the principal investor can obtain the visa, and the company can also obtain visas for non-owner managers, supervisors and “essential workers.”
This visa has appeared promising to owner/operators who view their investment in their equipment as substantial enough to qualify for the visa. Unfortunately, E-2 visas are not available to owner/operators. Although the dollar amount of the investment, measured by the value of the equipment, in generally sufficient to qualify for the E-2 visa, most owner/operators are financing their equipment, and do not have a substantial enough equity built up for it to qualify as their own nonrecourse or “at-risk” investment.
For investments of $100,000 or less, the amount of personal “at risk” investment must be close to 100 per cent.
Furthermore, the E-2 visa is not designed for self employment, or to serve primarily for the subsistence of the investor himself. An investment will not qualify if it does not create jobs and has little economic impact other than providing a means of livelihood for the Canadian investor.
Finally, job duties that primarily involve driving are not considered to be managerial or supervisory in nature.
And, while the job duties literally can be considered to be “essential” to motor carrier operations, they do not meet the Immigration law test of uniqueness and specialization required under the definition of “essential” for E-2 visa purposes.
Unfortunately, there is no legal way for the typical Canadian driver, whether employee or owner/operator, to obtain work authorization to drive point to point in the U.S.
– Daniel Joyce is a partner with the Buffalo N.Y. law firm Jaeckle Fleischmann & Mugel LLP. He can be reached at (716) 843-3946.