Still no U.S. work authorization for owner/operators
June 1, 2001
Last month, I began to look at the issue of how a Canadian carrier could establish U.S. operations. Let's expand on that a bit.After establishing U.S. operations, the new U.S. company would need dedic...
Last month, I began to look at the issue of how a Canadian carrier could establish U.S. operations. Let’s expand on that a bit.
After establishing U.S. operations, the new U.S. company would need dedicated equipment and drivers in order to operate. Certainly, the company can hire U.S. drivers, but what about the use of Canadian drivers or other personnel?
Is there any way to use Canadian personnel in the U.S. operations, even if only on a temporary basis?
If the person will be used primarily as a driver, the answer is no. As a general rule, there is no work authorization available for Canadian drivers in the U.S.
I receive many questions about green cards and other types of work authorization for Canadian personnel. Apart from some very limited exceptions, work authorization is not available for truckers.
A green card is much more than a work permit, it’s evidence of landed immigrant status in the U.S. And it grants the individual the right to live and work in the U.S. permanently.
If a person is eligible for a green card, his or her spouse and dependent children under age 21 are also automatically eligible.
(Of course, each must have a clean criminal record and be otherwise eligible for entry.)
In fact, “green card” is a bit of a misnomer.
At one time, years ago, the card had a green tint to it. For some reason, the name stuck even though the features of the card have changed often over the years.
The green card application process would not typically be initiated by the Canadian truck driver. As a general rule, all applicants must be sponsored by a U.S. citizen: a relative or an employer.
There are quotas and waiting lists associated with many of the family-based categories.
While there is no waiting list for applications filed by a U.S. citizen on behalf of their spouse or parent, those filed for siblings are backlogged in excess of 10 years.
Somewhere in the middle are the children. The waiting list is approximately 2.5 years long for unmarried adult children of U.S. citizens and it’s more than five years for married children and their families.
Underlying the employment-based categories, is the concept of “labor certification.”
This is a test of the job market to determine whether qualified domestic workers are available for the position. Labor certification entails an actual recruitment effort monitored by the U. S. Department of Labor, or proof that an adequate effort has already been made.
Despite the well-known shortage of truckers in the U.S. and Canada, the INS and the U.S. Department of Labor have both consistently maintained the position that drivers are not eligible for labor certification.
The reasoning appears to be that despite the actual job shortage, the problem is not considered critical because U.S. workers can be trained for the job in a matter of a few weeks. Green card applications are quite job-specific, but after approval, green card holders are not restricted to any job.
There is an exception to the labor certification requirement that is often available for Canadian carriers establishing operations in the U.S.
A Canadian carrier can transfer managers or executives permanently to the U.S. facility. The U.S. operations would have to be fairly well established and Canadian operations would have to continue. The transferring employee would have to show that they have worked as a manager or executive for the Canadian organization for at least a year prior to the transfer.
Because the transfer is within the organization and at a high level it is not considered to interfere with the U.S. job market and is exempt from the labor certification requirement.
Owner/operators generally fall short of the eligibility requirements for this type of visa for two main reasons. First, although the owner/operator may be an incorporated business, it is usually not a large enough organization to support the concept of a managerial transfer. Second, a person whose duties primarily consist of driving is not considered to be a manager or executive – even though they may hold an officer or director position in the corporation.
Before dismissing the green card possibilities, Canadian drivers should look at their family tree and see whether there are any U.S.-citizen parents or grandparents.
Keep in mind that the laws changed a couple of years ago, making it almost impossible for a U.S.-citizen to sponsor a child or other relative, if the sponsor resides outside the country. But, every now and then, I run across a Canadian driver who has a direct claim to U.S. citizenship, without even knowing it.
This eliminates the need for a green card application allowing the person to apply for a Certificate of Citizenship based on the parent.
Also, Canadian carriers should be aware that natives of North America or “First Nation” members have full rights for work authorization and green card eligibility on both sides of the border. n
– Daniel Joyce can be reached at Hirsch and Joyce, Attorneys at Law, at 716-564-2727.