Presented at Toronto International Film Festival (TIFF) 2017: BORDER PATROL by Immigration Lawyer Evelyn Ackah, Ackah Business Immigration Law and Canadian Counsel for D’Alessio Law Group; with co-presenters Lorraine D’Alessio of D’Alessio Law Group and Elliott Anderson of Alliance of Canadian Cinema, Television and Radio Artists (ACTRA) :
With NAFTA under negotiation, US and Canadian producers face new challenges. How do politics impact our industry, productions, and sustainability? This in–depth philosophical and practical session focuses on immigration law, freedom of movement, and the legal implications for co–ventures for US/Canada productions under the new US Administration. Border Patrol informs filmmakers how best to prepare their productions and team amidst political uncertainty.
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● Do your due diligence on the partners you will be working with abroad
● Take a strategic approach to international partnerships
● Citizens from different countries have different negotiating styles, know who
you’re talking to
● Find the right partners to take advantages of tax incentives (it can be
complicated)
● Understand Work Authorization requirements
What do I need to know about cross-border productions?
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LMIA Required
● Temporary Foreign Worker Program (TFWP)
● Temporary Foreign Worker Program (TFWP) allows employers to hire
temporary foreign workers (TFWs) to fill temporary labour and skill shortages.
The permit process is subject to approval through a Labour Market Impact
Assessment (LMIA). LMIA verifies that there is a need for a temporary worker
and that qualified Canadians are available. The program is operated by the
Ministry of Employment and Social Development Canada
When is a LMIA required?
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AUTHORIZATION TO WORK WITHOUT A WORK PERMIT:
PERFORMING ARTS
● Actors, artists, technicians, and film/tv/theatre and radio workers, adjudicators
in a artistic field, buskers, circus performers, conductors, film co-producers, film
producers employed by foreign companies, film and recording studio users,
guest artists coming to perform on Canadian TV or radio, permanent positions in
performing arts venues and WWE athletes.
Working without a Permit
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AUTHORIZATION TO WORK WITHOUT A WORK PERMIT:
BUSINESS VISITORS
● A business visitor is someone who comes to Canada to take part in international
business activities without being part of the Canadian labour market.
● Business visitors usually stay in Canada for a few days or a few weeks but are
able to stay for up to six months.
Working without a Permit
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OTHER OPTIONS:
● C-20 Reciprocity for Co- Productions
● C-10 Significant Benefits
Options
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US Visa Options
for Filmmakers and Other Artists
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● O-1 - Extraordinary ability in Film/TV & Arts
● TN - Specialty Occupation for Canadian and Mexican Citizens (not many creative
professions)
● E-1 & E-2 - Treaty Traders & Treaty Investors
● L-1 - Intracompany Transferees
● I - Journalists & Documentary Filmmakers
● B-1/B-2 Business Visitors & Tourists
What U.S. Visa options should I consider?
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1. Agent or Employer Petitioner
2. United States Employment Offer
3. Evidence that Artist is Extraordinary
O-Visa: The 3 Necessities
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● Commonly used to bring in Cast & Crew if someone on the production is an O-1
visa holder
● Must file a separate petition, but multiple people can be on a single O-2 visa
application
O2-Visas: Essential Support Personnel for O-1
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● Only available to citizens of Canada and Mexico
● Profession must be listed on designated List of Professions
○ Creative professionals may qualify under Graphic Designer, Technical
Writer, or Management Consultant
● May be impacted by changes to NAFTA
TN Visas: NAFTA Treaty Visa
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• U.S. has a treaty with government of applicant
• Applicant has invested, or is investing a substantial amount of capital in a bona
fide enterprise in the U.S. OR is conducting trade with U.S. entity
• Planning to come to the U.S. to work for the E1/E2 company
E1 & E2 Visas: Treaty Traders & Investors
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● Applicant has been working for foreign company for 1 year out of past 3 years
● Applicant has invested, or is investing a substantial amount of capital in a bona
fide enterprise in the U.S. or is conducting trade with U.S. entity
● Majority ownership of foreign company & US company is the same
● Planning to come to the U.S. to work for the US branch/subsidiary
L1: Intracompany Transferees
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● Allows journalists working for foreign (non-US) news media to report/document
events in the U.S.
● Requires press credential from foreign country + letter of employment from
foreign employer
● Also allows documentary filmmakers who are working on productions which
will be distributed abroad (outside US) to work in the U.S
I Visa: Journalists & Documentarians
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● Allowed to attend business meetings and seminars, and conduct research for
projects
● NOT allowed to be paid by US company
● Most activities related to film/TV production require an employment visa, EVEN
IF you are being paid outside the US
B-1, B-2 Business Visitors and Tourists
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● Applicants who apply from within the U.S. can start working in the U.S. upon
approval
● Applicants who apply from abroad must first visit a U.S. Embassy and undergo
an interview
● ONLY CANADIANS can just take the approval to the port of entry - Lucky!!
After Your Approval
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● Know what you’ll need to start a company in the U.S. (Don’t rely on the internet
for legal advice)
● Understand how your immigration status may affect your ability to own & work
for a company
● Due diligence and contracting parties
Now that you’ve made it across the border - you must protect yourself
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(Continued)
● Is your company’s intellectual property protected in the United States?
● Who do you want to own it when all's said and done?
● Be cautious of giving all your rights aways!
Now that you’ve made it across the border - you must protect yourself
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● Extreme Vetting
○ Increased scrutiny at the border and U.S. Embassies and airports
○ Must report all travel to US for past 15 years - increased from 5 years
○ US Embassies and CBP officers at airports are checking social media for
unauthorized employment or intent to work in the U.S
● US Immigration policy is changing VERY RAPIDLY and it is extremely important
to consult with an attorney to create and execute a strategy
Trends Under Trump