Canadian Lawyer InHouse

Oct/Nov 2008

Legal news and trends for Canadian in-house counsel and c-suite executives

Issue link: https://digital.canadianlawyermag.com/i/50895

Contents of this Issue

Navigation

Page 10 of 47

entered into Canada 25 years ago as part of a protest. He was detained at that time and, although he was later released, coun- sel needed to find out whether this was something that Immi- gration and Citizenship had a record of — and whether it was something that needed to be disclosed. ■■■ "Immigration transfers are about two things," says Fisher. "It's an understanding of the law of immigration, and then there's an understanding of the practicalities, the nuances, the things that are not written in the books." In-house counsel and HR departments should keep the fol- lowing tips in mind to facilitate the intracompany-transfer-ap- plication process: Prep the transferee It's important to sit down with the employee and go over the supporting documents, to ensure the employee understands the application criteria and can give an informed response to questions. "Dealing with Canada Immigration or immigration and customs officials is intimidating for many people," says Pet- rykanyn. "Particularly for people coming from cultures where authority figures are more of a problem, or more difficult to deal with. So, oſtentimes, people will say things they shouldn't say, or they'll say something they think they should say, as op- posed to what the truth is. They'll describe their job in a way that's not accurate for some reason, or they'll freeze — and if they misrepresent themselves, even in an innocent way, it can have ramifications." Understanding the immigration officials' mandate can relieve the employees' apprehensions, says Naseem Malik, counsel in McCarthy Tétrault LLP's labour and employment group in To- ronto. This helps them present more credibly and argue on their own behalf if an officer questions their written submissions. Counsel should also ensure their contact information is vis- ible on the application, he adds, so they can easily be contacted if need be. Other steps worth considering include contacting immigra- tion officials in advance to discuss the employee's "hypotheti- cal" case, or having a translator present when they arrive at the port of entry in the case of a transferee with poor English skills. Although translators won't be allowed in any interviews, they can be helpful in the pre-interview process and in putting the transferee at ease. Choose the venue wisely Employees should make their point-of-entry application in the best possible place, says Malik. Although foreign nationals from most countries are required to apply at their Canadian embas- sy — with resultant delays — NAFTA applicants can hop on a plane and have their work permit application adjudicated on the spot at a port of entry. Rather than a land crossing, Malik recommends a large air- port, such as Toronto's Pearson International Airport, which typically has 10 to 15 immigration officers working at any given time, due to the sheer volume of applicants they must deal with. As a final tip, Malik cautions employees not to "venue shop" — to try and cross at one border crossing and upon rejection sneak to another one. "Immigration officials don't look kindly on that." ■■■ In the final analysis, says Fisher, the decision as to whether the in-house legal staff will handle intracompany transfers itself boils down to internal confidence. On a case-by case ba- sis, Petrykanyn suggests weighing how important the worker is, and how fast the company needs them in Canada. "If time is of the essence, if it's important that someone come in and not be held up, then it's probably best to pass it along," says Petrykanyn, "There are probably issues that can be worked through by in-house counsel, or by their lawyers, but there can be delays." Lowe offers a financial analysis as a guideline. "Quite oſten the fees that we charge are a small portion of the value or the importance of the position to the company," he says. "It could cost anywhere from about $2,500 to as much as $5,000 to bring somebody in with a work permit. Now, if somebody's only getting paid $20,000 a year, that's an awful lot of money. But if somebody's getting paid $200,000 a year, then it's more im- portant to get the person in now, or as close as possible to now because if you delay a week's worth of time in getting the person over, that's $4,000." Lowe suggests that smart in-house counsel will make the de- cision to seek outside help based on self-preservation and com- mon sense. "If you're sitting there as an HR manager, and you're responsible for bringing in certain executives, you could either try to do it yourself, or you could farm it out to counsel. If you try to do it yourself, and you succeed, that's great; you've saved the company a couple thousand dollars — but you're probably not going to see it on your paycheque. Whereas if you screw it up, that could have some serious consequences, and maybe even cost you your job." He adds that if in-house counsel hire a reputable immigration firm, or even a large law firm, at least the HR manager could say: "Hey, listen, I hired so and so, and paid them thousands of dollars, and if there was a problem, it's not my problem — it couldn't be done!" Finally, he cautions all lawyers involved not to get caught up in what he calls the "McDonald's approach," where the client requests an intercompany transfer visa fast and cheap, and the lawyer says: "Yes sir, we'll do it for you right away." "The best method is to have a consultation — look at the cli- ent's background, the objectives, and then say, 'Given what we have, what tool would work best in your situation?'" And in the end, if something should go wrong? "Have a good immigration lawyer that you know," says Malik. "So you have that contact available in advance." IH C ANADIAN Lawyer INHOUSE OC T OBER 2008 11

Articles in this issue

Archives of this issue

view archives of Canadian Lawyer InHouse - Oct/Nov 2008