Hodgson Russ lawyer says poor planning and strict border enforcement can derail site visits and deals
Canadian business travel to the United States looks deceptively simple, but the line between “meeting” and “working” is far sharper than most clients appreciate. For immigration lawyer David Wilks, crossing the Canada–US border is different than a cross-provincial trip; it is a formal application for admission to a foreign government, with serious consequences if people get the rules wrong.
Wilks, a partner at Hodgson Russ and secretary of the American Immigration Lawyers Association, says he is seeing increased focus on ensuring strict immigration compliance at the US/Canadian border. The legal framework has not been overhauled, but nervousness has grown as clients realize that ordinary trips for site visits, troubleshooting, or integration work can, depending on the facts, be treated as unauthorized US employment. That anxiety is amplified by tougher conditions at ports of entry, where officers are more likely to scrutinize what visitors actually do rather than what their business cards say.
He wants Canadian lawyers to start by asking one blunt question of their clients travelling to the US for business: What will the person really be doing in the US, hour by hour, and for whose benefit? That analysis matters most when clients already have US operations – an affiliate, warehouse, plant or distribution centre. A typical pattern, he says, is for a Canadian manufacturer with a US facility that was set up years ago to send a manager south on a regular basis to oversee staff, resolve operational issues, and sign off on key decisions. On paper, those US workers report to the Canadian executive. In substance, that executive manages a US workforce and provides services in the United States on behalf of a US entity.
Wilks sees that as the point where soft descriptions like “just checking in” stop being helpful. He tells Canadians to strip away the label “meetings” and apply a structured test. “When you’re trying to determine whether someone needs work authorization, you’re looking first, what payroll are they on… are they staying on Canadian payroll, or are they going to be on US payroll in any way, shape or form,” he says. Beyond payroll, he looks at whether the activities are the kind of work for which a US worker would typically be hired – hands-on operational tasks, managing local staff, servicing US-based equipment – and whether the services primarily benefit a US entity rather than the Canadian parent. In his framework, a “yes” on any of those fronts is a red flag that work authorization may be required.
Once the facts drift into that grey zone, Wilks does not think Canadians should improvise. “If you have any doubts at all… loop in a US immigration lawyer,” and make sure “that the advice that you’re providing in terms of whether the person needs US work authorization is accurate,” he says. In his files, the most difficult situations often start with a well-intentioned but incomplete explanation at the border, followed by a refusal and, in some cases, a multi-year bar on re-entry that blindsides both the employee and the company.
To avoid that, he pushes clients to treat border preparation as a core compliance step rather than an afterthought. Travellers, he says, should be coached to give fully honest, accurate and succinct answers. It is, after all, an application for admission to the US government, not a casual conversation. Employees need to know which entity employs them, who they report to, which sites they will visit, and which activities they will and will not perform. It is, he says, “important to make sure that your employees know what they’re doing when they’re crossing the border,” and that they understand joking, minimizing their role or offering half-truths to dodge uncomfortable questions can make things worse, not better.
The environment at ports of entry leaves little room for error. Wilks notes that clients are encountering longer waits, more frequent searches of electronic devices and greater variation between crossings in how officers exercise discretion. In that setting, any inconsistency or vagueness in a traveller’s story is more likely to be treated as a credibility problem than as a misunderstanding.
At the same time, he sees a quieter but significant shift in how travel and status are documented. One of his current concerns is the interplay between the I-94 record and the G-325R registration requirement. He explains the distinction in practical terms: the visa approval is the ticket that allows someone to seek admission at the border; the I‑94 is the record that sets the “park hours” – the class and length of authorized stay in the United States. Land crossings, he notes, do not always generate a fresh I-94 for repeat visitors, particularly at busy land borders, and even when they do, he has seen errors or earlier‑than‑expected expiry dates.
That does not relieve visitors of obligations. If a new I-94 is not issued and the person plans to stay in the US for 30 days or more, Wilks says they may be required to register by filing a G-325R within 30 days of their entry. In his view, the I-94 and a green card together serve as proof that a non-citizen is properly registered; where they are absent, and a longer stay is contemplated, “non-immigrants without I-94 must register within 30 days,” he says. Canadians generally receive a new I-94 when they fly, because airlines transmit advance data to US Customs and Border Protection. At land crossings, by contrast, the absence of a new I-94 can quietly trigger registration duties that neither the traveller nor the employer has clocked.
The risks are not limited to individuals crossing for short stints. Wilks points out that immigration status can be jeopardized in corporate transactions, even when no one is crossing the border. US companies frequently employ foreign nationals, and changes in ownership or structure can affect whether those employees remain eligible under their visas. He has seen Canadian acquirers concentrate on financial and regulatory due diligence while leaving immigration until after closing, only to discover that key personnel from India, China, Japan, Korea, and other countries now face status issues. In some deals, missing or mis-timed filings before, on, or shortly after closing have left those employees unable to continue working lawfully for the post-transaction entity.
For that reason, he tells corporate and M&A lawyers that “when companies are buying US entities, they really need to pay attention to immigration due diligence,” and he treats immigration as a standard workstream rather than a niche concern. From his perspective, “whenever you’re buying a new entity, if immigration diligence isn’t part of what you’re doing, you’re making a mistake,” because the value of the acquisition depends in part on preserving the skills and knowledge of the people who already work there.
Ultimately, though, Wilks sees cross-border practice as anchored in one simple reality: every file comes down to a conversation between an individual traveller and an individual officer. The lawyer’s job, as he defines it, is to put clients in the best possible position for that conversation, whether by securing the right work authorization, drafting a clear business visitor support letter, or mapping out the facts so the traveller can speak confidently. In his words, “making sure that your client feels comfortable and secure going in is going to make a big difference for them,” especially when “rightly or wrongly, people do feel more nervous,” he says.
