Breakfast for the mind: Employment and labour autumn seminar 2017
77
Breakfast for the Mind Employment and labour Autumn seminar 2017
Transcript of Breakfast for the mind: Employment and labour autumn seminar 2017
Breakfast for the Mind
Employment and labourAutumn seminar 2017
Fausto Franceschi, Partner
Emcee
2
Speakers
Adrian C. Elmslie
Partner
D + 1 780 423 7364
Fausto Franceschi
Partner
D + 1 780 423 7348
Cristina Wendel
Partner
D + 1 780 423 7353
Alison Walsh
Associate
D + 1 780 423 7147
Ellen Kief
Counsel
D + 1 604 622 5162
3
Leticia Siu
Associate
D + 1 780 423 7280
Alison Walsh, Associate
Upcoming changes to the
Employment Standards Code
(Alberta)
4
• What is changing?
• Review of changes to existing provisions.
• What is being added?
• Review of new additions to the Code.
• Implications:
• What should employers be doing to prepare?
22 November 2017 5
Upcoming changes to the Employment Standards
Code (Alberta) - Overview
• Bill 17 – The Fair and Family-Friendly Workplaces Act
• Most of the amendments to the Code will come into force on January 1,
2018.
• Collective agreement provisions will continue to apply until expiry.
• The provisions on youth employment will come into force on
proclamation.
22 November 2017 6
Coming into force
• Code was lasted updated in 1988.
• Some changes made to better align with other jurisdictions.
• Some changes were made to better align with the
Employment Insurance benefit program.
• Changes were brought in following a relatively short
consultation period, consisting of receiving input from
stakeholders and online surveys.
• Repeals exemption of farmer and ranch workers.
• Hours of work, rest periods and overtime provisions will continue to in
inapplicable.
• Family members will continue to be exempt.
22 November 2017 7
Why the changes?
• Employees will be eligible for current and new leaves after
90 days (rather than a year)
• Maternity/parental and compassionate care leave changes currently
have a 52 week eligibility period
• Exception – Reservist Leave – eligibility period is still 26 weeks
22 November 2017 8
Job protected unpaid leaves – changes to existing
leaves
• Maternity leave to be increased from 15 to 16 weeks.
• To better align with Employment Insurance benefits.
• To account for the 1 week waiting period for Employment Insurance benefits.
• Parental leave will remain at 37 weeks.
• Future changes may be effected via regulations to better align with
Employment Insurance benefits.
• Compassionate care leave to be increased from 8 weeks to 27 weeks.
• To better align with Employment Insurance benefits.
• Caregiver status is expanded.
• Leave will not longer be limited to 2 installments.
• Notice for returning to work reduced from 2 weeks to 1 week.
22 November 2017 9
Job protected unpaid leaves – changes to existing
leaves
• Eligibility – Employees will be eligible for new leaves after 90 days, rather
than one year (excluding reservist leave).
• New job protected unpaid leaves:• Personal and Family Responsibility Leave
• Long-Term Illness and Injury Leave
• Bereavement Leave
• Domestic Violence Leave
• Citizenship Ceremony Leave
• Critical Illness of a Child Leave
• Death or Disappearance of a Child
• Eligible employees can take time off work for the above leaves without
risk of loosing their jobs.
• On return from leave, employers must give employees their same or
equivalent job back.
22 November 2017 10
Job protected unpaid leaves – new leaves
22 November 2017 11
Job protected unpaid leaves – new leaves
Leave Length of
Leave
Giving Notice Purpose of
Leave
Personal and Family
Responsibility Leave
Up to 5 days during
calendar year
As much notice as
reasonable and practical
For the employee’s
health or to meet family
responsibilities in
relation to family
members.
Long-Term Illness and
Injury Leave
Up to 16 weeks per
calendar year.
- Written notice as soon
as practical.
- Provide medical
certificate stating
estimated length of leave.
- 48 hours notice of return
to work unless otherwise
agreed.
For employees’ with
long term illness or
injury.
Bereavement Leave Up to 3 days per
calendar year.
As much notice is
reasonable and practical.
For bereavement of a
family member.
22 November 2017 12
Job protected unpaid leaves – new leaves
Leave Length of Leave Giving Notice Purpose of
Leave
Domestic Violence
Leave
Up to 10 days leave
during calendar year.
As much notice as
reasonable and
practical.
To allow employees to
seek medical attention,
obtain counselling or
victim services,
relocated or seek legal
or law enforcement
assistance.
Citizenship Ceremony
Leave
Up to ½ day leave. As much notice as
reasonable and
practical.
To attend a citizenship
ceremony to receive
certificate of
citizenship.
Critical Illness of a
Child Leave
Up to 36 weeks. - 2 weeks written notice
(except where shorter
period is necessary)
- Provide medical
certificate.
- 48 hours notice of
return to work unless
otherwise agreed.
To allow parents time
off to care for critically
ill or injured child.
22 November 2017 13
Job protected unpaid leaves – new leaves
Leave Length of Leave Giving Notice Purpose of
Leave
Death or
Disappearance of a
Child
Up to 52 weeks for an
employee whose child
has disappeared and it
is probable that the
child disappeared as a
result of a crime.
Up to 104 weeks for an
employee whose child
has died and it is
probable that the child
died as a result of a
crime.
Provide written notice
and reasonable
verification of
entitlement to the leave
as soon as it is
reasonable and
practical.
48 hours of notice of
return to work unless
otherwise agreed upon.
For an employee
whose child has
disappeared or has
died and it is probable
that the child
disappeared or died as
a result of a crime.
Employee is not
entitled to leave if
charged with the crime.
• Minimum Wage
• Employers will no longer be allowed to pay employees with disabilities less
than minimum wage.
• Deductions
• Changes to allowable and prohibited deductions from earnings.
• Rest Periods
• Current entitlement is 30 minutes rest period for every shift longer than 5
consecutive hours.
• This will change to entitle employees to a 30 minute break for every 5 hours of
consecutive employment.
• Breaks may be paid or unpaid.
22 November 2017 14
Changes to existing standards
• Currently, employees receive overtime pay after eight hours of work per
day or 44 hours per week, whichever is greater.
• 1 hour overtime = 1.5 normal hourly wage.
• Currently, banking arrangements in which employees take time off at a
later date instead of being paid overtime are also possible.
• 1 hour overtime = 1 hour off at later date.
• Banking arrangements will change.
• Employees will receive 1.5 hours off per hour of overtime worked instead of 1
hour.
• Alignment between overtime pay and banked hours.
• Every other province that allows overtime uses this system.
• Timelines will change - time off will need to be taken or paid out within 6
months instead of 3 months.
22 November 2017 15
Changes to existing standards - overtime
• Currently, employers may put in place a compressed work week.
• Fewer work days with more hours of work per day.
• This type of arrangement will be replaced with averaging agreements.
• Employer will average an employee’s hours of work over a period of 1 to 12
weeks for the purpose of determining overtime.
• Averaging agreements must:
• Be in writing.
• Provide a start and end date with a term no longer than 2 years.
• Have daily hours of work that do not exceed 12 hours.
• Have scheduled weekly hours that do not exceed an average of 44 hours.
• Specify how overtime is calculated.
• Averaging agreements may be between an employer and an employee or a
group of employees where the majority agrees.
• Current compressed work week arrangements may remain in place for up to a
year.
22 November 2017 16
Changes to existing standards – compressed work
weeks / averaging agreements
• General Holiday and General Holiday Pay
• Requirements will be simplified.
• Requirement to have worked for 30 days in the 12 months before the holiday
will be removed.
• Distinctions between regular and non-regular days of work will eliminated.
• General holiday pay will be calculated as 5% of wages, holiday pay and
vacation pay earned in the 4 weeks immediately preceding the holiday.
• Vacations and Vacation Pay
• Half-day vacation increments will be allowed, up from 1 day.
22 November 2017 17
Changes to existing standards – holiday pay and
vacation pay
• Clarification of rules regarding termination notice required to expedite a
resignation.
• If employee gives less notice of termination than employer would have been
required to give, employer can expedite the termination by paying the
employee his or her wages during the notice period the employee gave.
• Employers will be prohibited from forcing employees to use entitlements
during a termination period unless agreed to (i.e. banked overtime,
annual vacation or day in lieu of holiday pay.
• Probationary period changes from 3 months to 90 days
22 November 2017 18
Changes to existing standards - terminations
• Changes to the group termination notice provisions.
• Currently, employers terminating 50 or more employees at a single location
within a 4 week period are required to give the Minister of Labour 4 weeks
written notice.
• Notice requirements will be graduated and significantly increased:
• 50 – 99 employees = 8 weeks.
• 100 – 299 employees = 12 weeks.
• 300+ employees = 16 weeks.
• Copy of notice must be given to bargaining agent if applicable and if not, to the
employees as per the regulations.
• Will only constitute notice to employee only if a copy is given to the employee.
22 November 2017 19
Changes to existing standards - terminations
• Changes introduced to eliminate the possibility of an indefinite temporary
layoff.
• Layoffs must be limited to 60 days within a 120 day period.
• Layoffs may be extended if wages and/or benefits are paid and the employee
agrees, or if there is a collective agreement in place with recall rights.
• Unless otherwise provided by a collective agreement, the employer will
need to give written notice of the temporary layoff (1 or 2 weeks
depending on length of service, or as soon as practicable if
unforeseeable circumstances).
• Unless there is a collective agreement in place with recall rights, recall
notices must give 7 days written notice and must be served on the
employee.
22 November 2017 20
Changes to existing standards – temporary layoffs
• Various changes to the youth employment provisions.
• Various categories – artistic endeavours, light work, hazardous work.
• Permits and parental consent may be required.
• Changes are not being made immediately.
• Consultation process is required pursuant to the regulations to determine what
will constitute light work and hazardous work.
22 November 2017 21
Changes to existing standards – youth employment
• Changes to the Code will expand the list of records that employers are
required to keep for 3 years.
22 November 2017 22
Changes to existing standards – record keeping
• Currently, the Code allows for employers to apply to the Director for
permits to modify or provide an exemption from certain standards (ex.
hours of work, minimum wage).
• The permitting process will be streamlined.
• It will contain clear and enforceable criteria that will be published in regulations
or policies.
• It will set time limits on permits or variances.
• Permits previously granted to employer associations or industry-wide
exceptions will be replaced with regulations.
• Permits, variances and exemptions will be published.
• Existing permits will continue until no later than January 1, 2019.
22 November 2017 23
Changes to existing standards – permits, exceptions
and variances
• Umpires for appeals will be replaced with “appeal body”.
• Anticipated this will be the Labour Relations Board.
• Introduction of administrative penalties system.
• Employer may be required to pay a daily amount for each day the
contravention or failure to comply occurs.
• Penalty may not exceed $10,000 for each contravention or each day.
• Greater ability for Officers to recover an employee’s earnings, conduct an
investigation/inspection/audit, require self-audits and dismiss unfounded
complaints.
• Time periods for recovery of earnings will no longer be dependent on
when the order is issued.
22 November 2017 24
Changes to existing standards – enforcement:
appeal body, administrative penalties and officers
• Limitation period for prosecution increasing from 1 year to 2 years.
• All breaches of the Code or Regulations will be considered an offence.
• Details of enforcement actions to be published.
22 November 2017 25
Changes to existing standards – enforcement and
prosecutions
• Familiarize yourself with the changes.
• Educate your staff about the changes (in particular, supervisors, human resources and
payroll staff).
• Review (and where necessary revise) existing policies, handbooks, offer letters and
employment agreements to ensure they are in compliance with the changes.
• Ensure payroll systems are in accordance with new changes (e.g. general holiday pay).
• If you have existing compressed work week arrangements begin preparing new averaging
agreements. Employers have a year to implement new averaging agreements.
• Consider whether you will need new permits. Existing permits expire January 1, 2019.
• If your workforce is unionized, keep in mind changes to the Code on collective agreement
negotiations.
• Check for upcoming changes to employment standards regulations (details of which have
not yet been released).
22 November 2017 26
What can employers do in preparation for these
changes?
Adrian Elmslie, Partner
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Changes to the Alberta
Labour Relations Code
- The new rules
Unionization basics and implications
• The Labour Relations Code provides a legal framework under which
employees can choose to be represented by a trade union.
• Where a union is certified employees negotiate their terms and
conditions of employment with their employer as a group represented
by the union
• Implications:
• Union dues for all employees
• Loss of flexibility and efficiency in workforce
• Possibility of labour disruptions - Strikes and Lockouts
New government – new philosophy
• NDP has strong ties to trade unions
• Government undertook a review of Labour Relations Code shortly after taking power
• As anticipated, Bill 17 – Fair and Family-Friendly Workplaces Act
introduced significant changes to the Labour Relations Code which
almost exclusively benefit unions effective September 1, 2017
The changes
1) Certification Process Changes
2) Greater Union Access
3) Enhanced Sanctions
4) First Agreement Arbitration
5) Secondary picketing
Certification process changes
Labour Relations Code provides rules regarding how a union can get representational rights and how those rights are managed.
Old Rule:
Evidence of support of 40% of the bargaining unit filed with the Board
(petition or union memberships) will trigger a secret ballot vote.
Majority of the employees (more than 50%) who vote in a secret
ballot representation vote have selected union representation.
Certification process changes
Eliminate a secret ballot vote in some circumstances
Revised Code:
• If union provides evidence of greater than 65% support for the
union, certification is automatic – there is no vote
• If support is between 40% and 65%, then there is a vote
• Concern for employers:
No chance to respond – no standing in certification applications
Communication imbalance – may not actually reflect the fully
informed wishes of the employees where certification is
automatic
• 65% threshold does not apply to decertification – vote always required
Certification process changes
Extends the length of certification campaigns from 90 days to 6 months
Old Rule:
• Petition signatures expired after 90 days
Revised Code:
• Petition signatures are valid for up to 6 months
Certification process changes
Compressed timelines for certification applications
Old Rule:
• No specific timelines
Revised Code:
• Application process compressed into a 20 day period
Certification process changes
Restrictions on employer communications
Revised Code:
• The Board can prohibit the employer from publishing “propaganda”
(i.e. communicating with its employees regarding unionization
issues) when it orders a certification vote
Greater union access
Old Rule:
• No specific statutory right for union organizers or representatives to
access employer property
Revised Code:
• If employees reside on their employer’s property or on property to
which the employer …has the right to control access or entry, the
Board may direct the employer … to permit one or more union
representatives …to enter the property to attempt to persuade the
employees to join a trade union
• The employer must also provide the representatives with food and
lodging at the current price and of a similar kind and quality as that
provided to the employees
Enhanced sanctions
Old Rule:
Union had burden of proof to show discrimination based on union
involvement
Remedies for unfair labour practices such as inappropriate employer
communications decided on a case by case basis
Denounce conduct
Provide union access to correct message / misinterpretation
Reinstatement of fired employees
Board ordered certification not an option in the absence of a vote
Enhanced sanctions
Revised Code :
• Reverse Onus / Presumption of Guilt - Employers must prove their
innocence if accused of discriminating against an employee due to
union activities
• Board can order certification without a vote or majority support among
employees if an unfair labour practice is found
First agreement arbitration
Old Rule :
• Parties allowed to negotiate their first collective agreement
• First agreement arbitration required the consent of both the union and the employer
Revised Code:
• Board may impose binding first agreement arbitration without the
consent of the employer
• Third party arbitrator may decide what the terms of the first
collective agreement will be
Secondary picketing
Old Rule :
• Picketing restricted to employees’ “place of employment”
Revised Code:
• Striking workers have the express right to picket employer allies and secondary work locations
Summary
Implication of amendments to the Labour Relations Code:
• Much easier for unions to target and organize employers for
unionization
• Greater restrictions on employer’s ability to defend themselves
• Greater risk with aggressive or poorly informed union resistance
strategies
Reminder - Employer strategy
Principles for employers are the same
1. Have a union free philosophy (be a “pro-employee” organization)
2. Understand unfair labour practices and train your supervisory staff to
avoid them
3. Don’t ignore the signs of union activity
4. Seek legal advice before acting
Cristina Wendel
Drug and alcohol testing – a review
of recent Alberta cases
43
• Current status of drug and alcohol testing:
• Communications, Energy & Paperworkers Union of Canada, Local 30 v.
Irving Pulp & Paper Ltd., 2013 SCC 34.
• Reasonable cause, post-incident and return to work after substance abuse
treatment testing is generally acceptable in dangerous workplaces.
• In order to legally justify randomly testing workers in safety-sensitive
positions, employers must show evidence of a general problem with
substance abuse in the workplace.
22 November 2017 44
Drug and alcohol testing – random testing
• Suncor Energy Inc. v Unifor Local 707A, 2017 ABCA 313
• Suncor implemented random drug and alcohol testing for workers in safety
sensitive positions at some of its sites in the Fort McMurray area in 2012.
• The union grieved the alleged infringement of unionized workers’ privacy rights.
• An arbitration board heard the grievance in 2013.
• In 2014, the arbitration board released its decision, with the majority finding in
favour of the union and holding that Suncor had not demonstrated sufficient
safety concerns within the bargaining unit to justify random testing.
• The majority and the dissent agreed that the Suncor sites were dangerous, that
safety was important and that random testing was not automatically justified in
dangerous workplaces but had to be a proportional response to safety
concerns at the specific site.
• They disagreed on whether the balance tipped in favour of privacy or safety.
• Suncor applied for judicial review of the decision.
22 November 2017 45
Random testing – application of the Irving test
• On judicial review, the Court quashed the arbitration decision and
ordered that the matter be sent back for a fresh hearing by a new panel
(2016 ABQB 269).
• The Court found that the majority decision was unreasonable for 3 main
reasons:
• The majority misapplied the balancing exercise from Irving by imposing more
stringent requirements than those contemplated by the Supreme Court of
Canada.
• The majority erred by only considering the evidence that demonstrated
substance abuse problems within the bargaining unit and ignoring the evidence
of substance problems within the broader workplace.
• The majority had failed to consider all of the relevant evidence.
22 November 2017 46
Random testing – application of the Irving test
• The Court of Appeal considered it necessary to address only the second
issue identified by the reviewing justice – whether the evidence had to be
limited to the bargaining unit.
• The Court of Appeal noted that Suncor had led extensive evidence about
employee substance abuse problems at its Fort McMurray operations,
some of which directly implicated its unionized employees. However,
much of Suncor’s evidence related to the workplace as a whole, without
distinguishing between unionized, non-unionized and contractors’
employees.
• The Court of Appeal dismissed the appeal and affirmed the reviewing
justice’s decision to remit the matter for a new arbitration, to be heard by
a fresh panel.
22 November 2017 47
Random testing – application of the Irving test
• Key points from the Court of Appeal decision:
• The majority had gone too far in determining that, because it did not have jurisdiction
over matters outside the collective agreement, it was unable to consider evidence that
was not directly tied to the bargaining unit.
• The majority decision set the evidentiary bar too high by requiring particularized evidence
specific to Suncor’s unionized employees. Irving called for a holistic inquiry into drug and
alcohol problems within the workplace generally.
• While there may be some workplaces where there is good reason to distinguish between
unionized and non-unionized employees when considering evidence of substance abuse,
that was not the case here.
• The majority’s failure to explain its choice of one expert over another did not reflect
transparency and intelligibility into the decision-making process.
• While the majority did provide other reasons for allowing the grievance, it was impossible
for the court to determine how the majority’s unreasonable assessment of the substance
abuse evidence may have influenced its other conclusions about how to properly balance
employee privacy against safety.
22 November 2017 48
Random testing – application of the Irving test
• Stewart v. Elk Valley Coal Corporation – 2017 SCC 30
• Stewart was employed by Elk Valley as a loader driver.
• Elk Valley established a drug and alcohol policy.
• Required employees to disclose dependency and addiction issues.
• Those who did so would be offered treatment without discipline.
• Policy provided that if employees failed to disclose in accordance with the policy, were
involved in an accident and tested positive for drugs, they would be terminated.
• Stewart used cocaine on his days off and did not tell Elk Valley.
• Stewart was involved in a workplace accident and tested positive for cocaine.
• Stewart disclosed a cocaine addiction.
• Elk Valley terminated his employment.
22 November 2017 49
Drug and alcohol testing – accommodation issues
• The Alberta Human Rights Tribunal dismissed Stewart’s complaint, finding there
was no discrimination or alternatively, that Elk Valley had accommodated Stewart
to the point of undue hardship.
• The Court of Queen’s Bench and Court of Appeal agreed.
• The Supreme Court of Canada upheld the Tribunal’s decision.
• Stewart was not terminated due to his disability – he was terminated because he
breached the policy and expert evidence demonstrated that he had the capacity to
comply with the policy.
• This decision reinforces an employer’s right to take proactive steps through a
drug and alcohol policy to ensure workplace safety and impose discipline,
including termination, even where an employee is disabled.
22 November 2017 50
Drug and alcohol testing – accommodation issues
Leticia Siu, Associate
Updates in Canadian business immigration
51
How many different ways can a foreign national obtain work authorization
to work legally in Canada?
22 November 2017 52
Quiz
Less than 5 20 to 30 Over 50
40 LMIA Exemption Codes
1 LMIA Program
25 Regulation Work Permit Exemptions
66 Work Authorization Types…at least
…with new ones recently added!
22 November 2017 53
Answer
22 November 2017 54
Updates
Global
Talent
Stream
Permanent
Workers
(AINP)
CETAGlobal
Skills
Strategy
• Category A: designated partner + unique and specialized talent
• Innovation and growth focused employers
• Category B: Occupations List
• Computer, information systems, web design, digital media, etc.
22 November 2017 55
Updates
Global Talent Stream
• Labour Market Benefit Plan
• Mandatory benefit
• Category A: introduce jobs to Canadians/PRs
• Category B: increase skills and training for Canadians/PRs
• Complementary benefit
• transfer of knowledge, enhance company performance, implement best
practices/policies
• Ex: partnerships with educational institutions, hiring underrepresented
groups, internships/co-ops, direct mentorship
22 November 2017 56
Updates
Global Talent Stream
• Wage Requirement: higher of…
• Listed wage
• Current wage for same position and same skills
• Median wage
• Employer Compliance applies
22 November 2017 57
Updates
Global Talent Stream
• Pros:
• No mandatory recruitment requirements
• Quick Service Canada processing
• Qualifies for 2 week priority (Global Skills Strategy) processing online
22 November 2017 58
Updates
Global Talent Stream
• 2 week processing:
• outside of Canada IMP WP applications in NOC 0 or A professions
• GTS LMIA
• Short Term Work Permit Exemptions
• NOC 0 or A
• 15 Consecutive Days within 6 months
• 30 days within 12 months
• Researchers of publicly funded post-secondary institutions for 120 days per
year
22 November 2017 59
Updates
Global Skills Strategy
• Canadian-EU Comprehensive Economic and Trade Agreement
• 28 member states
• Categories:
• Business Visitors
• Investors
• Contractual Service Suppliers/Independent Professionals
• Intra-Corporate Transferees
• Senior Personnel, Specialists, Graduate Trainees
22 November 2017 60
Updates
CETA
• AINP
• Upcoming: January 2, 2018
• Limited Express Entry options
22 November 2017 61
Updates
Permanent Workers
• Alberta LMIA ineligible high-skilled occupations (“Refusal to Process”)
• Implied status
• Employer Compliance is still active
22 November 2017 62
Previous updates here to stay
Reminders
• NAFTA
• Emergency Repair Personnel
• Performing Artists
• Significant Benefit
• Intra-company Transferees
• Open Spousal Work Permits
22 November 2017 63
Previous updates here to stay
Useful Tools
Ellen Kief, CounselU.S. Immigration Law Practitioner of Foreign Law (BC)
Attorney at Law (MA)
U.S. business immigration
64
22 November 2017 65
Topics
• ABC’s of business immigration issues, including visa options and cross-borderpreparations in the current climate;
• Review of challenges faced by clients globally who are sending people tothe US for work or business travel;
• Review of common visa types of interest to clients:
o E1 and E2 Investor Visa;
o L-1A and L-1B Intra-Company Transferees Visa (for executive, managerial
and specialized knowledge employees);
o H-1B Specialty Occupation Visa;
o NAFTA, TN Visa;
o B1 Business Visa.
• Advice and best practices for cross border travel, for both clients andDentons members who travel to the US.
22 November 2017 66
Directory of Visa CategoriesThe purpose of your intended travel and other facts will determine what type of visa is required under
U.S. immigration law. As a visa applicant, you will need to establish that you meet all requirements to receive the category of
visa for which you are applying. When you apply at a U.S embassy or consulate, a consular officer will determine based on
laws, whether you are eligible to receive a visa, and if so, which
visa category is appropriate.
Nonimmigrant Visa Categories
The chart below contains many different purposes of temporary travel and the related nonimmigrant visa categories available
on this website. Select a visa category below to learn more:
Purpose of Travel Visa Category Required: Before applying
for visa*
Athlete, amateur or professional (competing for prize money only) B-1 (NA)
Au pair (exchange visitor) J SEVIS
Australian professional specialty E-3 DOL
Border Crossing Card: Mexico BCC (NA)
Business visitor B-1 (NA)
CNMI-only transitional worker CW-1 (USCIS)
Crewmember D (NA)
Diplomat or foreign government official A (NA)
Domestic employee or nanny - must be accompanying a foreign national employer B-1 (NA)
22 November 2017 67
Employee of a designated international organization or NATO G1-G5, NATO (NA)
Exchange visitor J SEVIS
Foreign military personnel stationed in the United States A-2 NATO1-6 (NA)
Foreign national with extraordinary ability in Sciences, Arts, Education, Business or Athletics O USCIS
Free Trade Agreement (FTA) Professional: Chile, Singapore H-1B1 - Chile
H-1B1 - Singapore
DOL
International cultural exchange visitor Q USCIS
Intra-company transferee L USCIS
Medical treatment, visitor for B-2 (NA)
Media, journalist I (NA)
NAFTA professional worker: Mexico, Canada TN/TD (NA)
Performing athlete, artist, entertainer P USCIS
Physician J , H-1B SEVIS
Professor, scholar, teacher (exchange visitor) J SEVIS
Religious worker R USCIS
Specialty occupations in fields requiring highly specialized knowledge H-1B DOL then USCIS
22 November 2017 68
*What the abbreviations above mean - Before applying for a visa at a U.S. embassy or consulate, the following is
required:
DOL = The U.S. employer must obtain foreign labor certification from the U.S. Department of Labor, prior to filing
a petition with USCIS.
USCIS = U.S. Citizenship and Immigration Services (USCIS) approval of a petition or application (The required
petition or application depends on the visa category you plan to apply for.)
SEVIS = Program approval entered in the Student and Exchange Visitor Information System (SEVIS)
(NA) = Not Applicable - Additional approval by another U.S. government agency is not required prior to applying for
a visa
Student: academic, vocational F, M SEVIS
Temporary agricultural worker H-2A DOL then USCIS
Temporary worker performing other services or labor of a temporary or seasonal nature. H-2B DOL then USCIS
Tourism, vacation, pleasure visitor B-2 (NA)
Training in a program not primarily for employment H-3 USCIS
Treaty trader/treaty investor E (NA)
Transiting the United States C (NA)
Victim of Criminal Activity U USCIS
Victim of Human Trafficking T USCIS
Nonimmigrant (V) Visa for Spouse and Children of a Lawful Permanent Resident (LPR) V (NA)
Renewals in the U.S. - A, G, and NATO Visas (NA)
22 November 2017 69
- 4 -
Important Notes:
About this chart – It is not a complete list of all travel purposes for the visa category. Select a visa category
webpage for more information. The chart lists almost all nonimmigrant visa categories, with the exception of several
not listed above. Refer to the Foreign Affairs Manual, 9 FAM 402.1 for all nonimmigrant visa categories.
Canadian NAFTA Professional workers – A visa not required; apply to U.S. Customs and Border Protection
(CBP) at border port of entry.
K nonimmigrant visas – For U.S. citizen fiancé(e) and spouse for immigration related purposes. Refer to Immigrant
Visa Categories.
Immigrant Visa Categories
The chart below contains different purposes for immigrating to the United States, and the related immigrant visa categories
for which information is available on this website. Select a visa category below to learn more:
Immediate Relative & Family Sponsored Visa Category
Spouse of a U.S. Citizen IR1, CR1
Spouse of a U.S. Citizen awaiting approval of an I-130 immigrant petition K-3 *
Fiancé(e) to marry U.S. Citizen & live in U.S. K-1 *
Intercountry Adoption of Orphan Children by U.S. Citizens IR3, IH3, IR4, IH4
Certain Family Members of U.S. Citizens IR2, CR2, IR5, F1, F3, F4
Certain Family Members of Lawful Permanent Residents F2A, F2B
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Important Notes:
*K Visas – Listed with immigrant visas because they are for immigration related purposes.
About this chart - This chart is a list of many immigrant visa categories, but not every immigrant visa category.
**Refer to the Foreign Affairs Manual, 9 FAM 502.1 for a listing of all immigrant visa categories.
Employer Sponsored – Employment
Employment-Based Immigrants, including (preference group):
Priority workers [First]
Professionals Holding Advanced Degrees and Persons of Exceptional Ability [Second]
Professionals and Other Workers [Third]
Employment Creation/Investors [Fifth]
Certain Special Immigrants: [Fourth]
E1 E2
E3, EW3
C5, T5, R5, I5
S (many**)
Religious Workers SD, SR
Iraqi and Afghan Translators/Interpreters SI
Iraqis Who Worked for/on Behalf of the U.S. Government SQ
Afghans Who Worked for/on Behalf of the U.S. Government SQ
Other Immigrants
Diversity Immigrant Visa DV
Returning Resident SB
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BUSINESS TRAVEL TO THE UNITED STATES
What type of U.S. visa will you need?
If you are planning business-related travel to the United States on a temporary basis, it is important to have information about the type
of nonimmigrant visa you will need for travel. The purpose of your intended travel and other facts regarding your plans will determine
what type of visa is required under immigration law. This flier is a resource that will help you learn about the visa process in general,
so that you will better understand the different steps involved.
Business Visitor Visa (B-1) - For business-specific purposes
The chart below is an overview of key groupings of temporary business related travel permitted on business visitor visas (Note: This is
not comprehensive. For other travel permitted under a business visitor visa (B-1), reference 9 FAM 41.31.)
Purpose of Your Travel About Your Temporary Visit
Athlete, professional a. Receives no salary or income from a U.S. based company/entity, other than prize money for participation in a tournament
or sporting event.
b. Athletes or team members who seek to enter the United States as members of a foreign based team in order to compete
with another sports team shall be admitted provided:
(1) The foreign athlete and the foreign sports team have their principal place of business or activity in a foreign
country;
(2) The income of the foreign based team and the salary of its
players are principally accrued in a foreign country; and
(3) The foreign-based sports team is a member of an international sports league or the sporting activities involved
have an international dimension.
a. Try-outs for a professional team, but cannot remain in the U.S. playing on a U.S. team in this visa category.
Business venture, investor seeking investment Survey potential sites for a business and/or to lease premises in the United States. Cannot remain in the United States to
manage business in this visa category.
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Purpose of Your Travel About Your Temporary Visit
Conference, meeting, trade show, or business event attendee Will receive no salary or income from a U.S based company/entity. For scientific, educational, professional or business
purposes.
Exposition or trade show employees of foreign exhibitors at
international fairs (excludes government representatives)
Will receive no salary or income from a U.S. based company/entity. Will plan, assemble, dismantle, maintain, or be employed
in connection with exhibits at international fairs or expositions.
Lecturer or speaker No salary or income from a U.S. based company/entity, other than expenses incidental to the visit. If honorarium will be
received, activities can last no longer than nine days at any single institution or organization; payment must be offered by an
institution or organization described in INA 212(q); honorarium is for services conducted for the benefit of the institution or
entity; and visa applicant will not have accepted such payment or expenses from more than five institutions or organizations over the last six months.
Researcher Independent research, no salary/income from a U.S. based source, or benefit to U.S. institution.
Sales/selling Exhibition/taking orders/negotiating and signing contracts for products, which must be produced outside the United States.
Service engineer (Commercial, Industrial) Engineer(s) install, service or repair commercial or industrial equipment or machinery sold by a non-U.S. company to a U.S.
buyer, when specifically required by the purchase contract. Installation cannot include construction work, except for supervision
or training of U.S. workers to perform construction.
Training Participating in a training program that is not designed primarily to provide employment. Will receive no payment or income
from a U.S. based company/entity, other than an expense allowance or expense reimbursement related to traveler’s stay.
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Next Steps - What You Must Do - If your purpose of planned travel and facts about your visit fits within the description above,
the next step is to schedule a visa interview appointment and apply for a visa at the U.S. Embassy or Consulate abroad, generally
in your country of residence.
How to Apply for a Visa
•Learn more about how to apply for a business visitor visa (B-1).
• Check on visa wait times for an interview appointment.
•Locate a U.S. Embassy or Consulate worldwide: find out how to pay the visa application fee, make an interview
appointment, and learn much more.
Important Note: When applying for a visa, you will need to meet all requirements for the visa for which you are applying. The
consular officer at the U.S. Embassy or Consulate where you will apply for your visa will determine eligibility for a visa, including
type of visa required, based on your application, interview, individual facts presented, and on U.S. immigration law.
Business Visa Center (for U.S. companies) – The Department of State Business Visa Center assists businesses located
in the United States by providing information about the application process for business visitor visa (B-1) travel to the
United States.
Embassy Business Facilitation (for companies abroad) - If you or your company are located overseas, U.S.
Embassies and Consulates worldwide have programs to assist businesses. The U.S. Embassy or Consulate where the
visa applicant will be applying is in the best position to provide information about any program they may have to
assist businesses in their location. For moreinformation, select Locate a U.S. Embassy or Consulate.
.
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Seeking Employment or Work in the United States?
If your purpose of planned travel and facts about your visit does not fit within the description above, you will probably need another
type of visa. If you are seeking to come to the United States on a temporary basis to work, be employed, and/or be paid by a U.S.
based company as a skilled or unskilled worker, you will need a temporary worker type of visa. In these situations, the prospective
employer must file with U.S. Citizenship and Immigration Services (USCIS), on behalf of the foreign prospective employee, a
nonimmigrant visa petition accompanied by an approved labor certification.
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To learn more about temporary workers in the United States, see the U.S. Citizenship and Immigration Services, USCIS Website,
and the Department of State, travel.state.gov website. See the Department of Labor information about hiring foreign workers and
labor certification required with petitions for some types of temporary workers.
If you are seeking to come to the United States on a permanent basis to work, be employed, and/or be paid by a
U.S. based company as a skilled or unskilled worker, you will require an immigrant visa. To learn more, see the USCIS Website
and the Department of State, travel.state.gov website.
Purpose of Your Travel About Your Temporary Visit Type of Visa Key Steps – What You Must Do
Employment/work Payment, income, salary will be paid to you by
U.S. based company or business entity.
Temporary Worker Visa (H, L, O, P, Q visas
and more)U.S. employer files petition with USCIS. After
petition approval, visa application at
U.S. Embassy or Consulate.
Internship Practical training through an internship with a U.S.
based employer, whether paid or unpaid by that
company.
Temporary worker trainee (H-3) or ExchangeVisitor (J) visa
H- U.S. employer files petition with
USCIS.
J – Applicant approval by J sponsor.
After above approval, visa application at U.S.
Embassy or Consulate.
Researcher Independent research, will receive U.S. payment, or benefit to U.S. institution
Temporary Worker
(H-1B) Visa or Exchange Visitor (J) Visa.
H- U.S. employer files petition with USCIS
along with an approved labor certification.
J – Applicant approval by J sponsor.
After above approval, visa application at U.S.
Embassy or Consulate.
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