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Work visas are few and far between

There are two questions that dominate my dealings with Canadian drivers. One is: "How can I legally drive point-to-point in the U.S.?" The answer is usually that you can't without a valid work permit....

Daniel Joyce
Daniel Joyce

There are two questions that dominate my dealings with Canadian drivers. One is: “How can I legally drive point-to-point in the U.S.?” The answer is usually that you can’t without a valid work permit. So the logical follow-up is, “Well, how can I get a work permit to drive in the United States?” Unfortunately, the answer is almost always that you can’t.

There are exceptions to this, such as when a Canadian driver is eligible for a Green Card due to a close blood relationship with a U.S. citizen. But even in such cases, the process can take many months, and even years, because of processing delays and annual quotas.

The other major category is employment visas, which require sponsorship by the U.S. employer.

So there is no way for a Canadian driver to sign up on a waiting list or apply for a U.S. visa on his own.

So the Canadian driver is faced with two obstacles. The first and easier hurdle is that he must find an employer willing to sponsor him, which, given the shortage of drivers in the U.S., isn’t really much of a challenge.

And that is the truely greater problem, because the rules defy the realities of the current job market.

The U.S. Department of Labor is quite protective of the U.S. workforce, and the Immigration and Naturalization Service (INS) will not adopt an immigration policy that displaces qualified U.S. workers. The Green-Card system forces employers to prove, through an elaborate recruitment process, that no U.S. worker is available to permanently fill a certain position.

Some jobs are deemed to have a ready supply of U.S. workers. Truck driver, a broadly used term without any distinctions, is one of them. So a permanent Green Card can’t be given out for that job.

Pressure from labor unions and other groups has caused drivers to remain on the ineligible list, despite the well-documented driver shortage in the U.S.

That leaves us with the category of temporary work visas.

Most temporary work visas are handed out to business owners and managers, professionals, such as computer engineers and scientists, or other jobs that-by their nature-will not disrupt the general workforce of skilled and unskilled workers. The INS looks at the primary day-to-day duties to determine eligibility.

An owner/operator, primarily, is not considered to be the owner or manager of a business, so that category is inapplicable to truckers.

But there is one category that has recently, on a limited basis, been available to Canadian drivers. That category is the H-2B visa for temporary workers.

Until lately, I understood the category had been only available to the large, household-goods carriers, to help them manage the peak summer moving season. However, I have received word from more than one driver that some general freight carriers in the U.S. have hired Canadian truckers using H-2B visas.

The H-2B designation refers to a subsection of the U.S. Immigration Law for employers who can demonstrate a temporary need for workers, such as seasonal, peak load or intermittent workers.

I wrote about it here a few years ago, but didn’t dwell on it because it is not the answer to the needs of most Canadian drivers, for several good reasons.

First, the U.S. employer must conduct the Department of Labor-supervised recruitment process, mentioned above.

This, and the subsequent INS application, can take three months or longer, so it is not much help to the carrier with needs drivers immediately.

Second, the employer must show that the need is only temporary-not permanent or indefinite-based on an overall shortage in the job market.

In other words, the H-2B category, by design, isn’t meant to fill the ranks of a U.S. employer who cannot find U.S. workers.

It is designed to supplement the standard workforce when the employer cannot find additional U.S. workers to meet a short-term need. That is why moving companies have been able to get Canadian truckers by pointing to the traditional increase in business over the summer months.

I suppose carriers that deal with agricultural goods in the northern states can make a similar case too. Although I am pleasantly surprised to see that some general freight carriers have taken advantage of the H-2B visa, this category isn’t the preferred solution to the U.S. driver shortage. Again, this is because the category is, by definition, designed to address a short-term need.

Finally, a visa is employer-specific, and won’t allow a driver to accept work in the U.S. from anyone other than the sponsoring employer. The H-2B visa is not a general work authorization document that allows an owner/operator to accept a contract from whatever source he can find. Also, because of the documentation and procedural requirements involved, it is not an efficient tool for a small carrier.

For now, the H-2B visa is perhaps the best available method for Canadian drivers to work lawfully in the U.S., but it is not a versatile or long-term method. A driver looking for long-term work privileges in the U.S. will not find it through this method. n

– Daniel Joyce can be reached at Hirsch and Joyce, Attorneys at Law, at 716-564-2727. This column is for information purposes only and is not intended as legal advice.

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