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FAQ Part I-Frequently Asked Questions: Canada to U.S. Immigration for Businesses and Professionals
Links to Other FAQs
21. How much
will it cost? (This link will take you to another Web page: FAQ:
Frequently Asked Questions: Business Immigration Legal Fees.)
22.
Our manager was stopped at the
border!--What should we do? (This link will take you to: FAQ: Stopped
by INS at the Canada/U.S.A. Border!---What to Do?)
23.
Social Security---Removing the
Mysteries. (This link will take you to: U.S.
Social Security Number for Canadians - FAQ To Remove The Mysteries.)
Turn this page into a double-sided digest size booklet.
Give to other decision makers in your company or to your prospective
employer. Link will take you to an independent Website for a software
download.
(10 minutes at 14.4k)
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ANSWERS
1. What is this FAQ all about?
Here are questions and answers about U.S. immigration---just for Canadians. This page is part of the Web site: U.S. Immigration for Canadian Businesses and Professionals maintained by the Law Office of Joseph C. Grasmick.
These are actual questions from our forum, Usenet Newsgroups and private E-mail questions to our office.
We glean the Newsgroups to save you the trouble. The postings contain many nuggets of useful information. To get those nuggets you must read a tremendous amount of material. This is because most visitors to the U.S. are not Canadian. Most Usenet questions do not deal with special issues facing Canadians. For example, only Canadians can get L-1 and TN-1 permits at the border and on the spot. Also, most Usenet contributors are not specifically interested in the business visas.
You may also wish to refer to frequently asked questions about legal fees. These extensive questions deserve their own FAQ on another Web page.
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2. Canadian landed immigrant---not a
Canadian citizen. Any special privileges?
ANSWER: Yes.
Here are special privileges for different groups:
Canadian citizens only:
- Eligible for TN-1.
- Can get L-1---at the border.
- Can get permanent Canadian commuter status. (Read about commuter status in the Canada-U.S. Business Immigration Handbook. )
Try the interactive visa selector to find the quickest and easiest option for your Canadian citizen employee.
Canadian citizens and Canadian Landed Immigrants:
- Canadian citizens and Canadian Landed Immigrants from certain countries do not need a passport visa for most work permits. (A passport visa is a stamp from the U.S. Consulate.) These employees will still need the appropriate work permit on form I-94. Visa exempt Landed Immigrants must be citizens of these countries:
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Anyone else:
- Eligible for most visas, except TN-1
- TN-2 for Mexican's only.
- E-1, E-2 only if country of citizenship has the appropriate treaty with the U.S. (There is a treaty with Canada.)
- L-1 by mail only. No border applications.
- B-1 for six months, instead of one year NAFTA maximum. (May be exempt from B-1 passport visa requirement, if there is a visa waiver program for the country of citizenship.)
Ask us if Canadian citizenship would make it easier to get a U.S. work permit for your employee. If you have Canadian landed immigrant staff consult with a Canadian immigration lawyer. You may be able to expedite Canadian citizenship.
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3. For a 4-month contract in the U.S. what type of visa do I need?
ANSWER: In some cases, you may not need a work permit. B-1 Visitors for Business can do many things in the U.S. that look like "work". For example, you can come to the U.S. to install, service and train if the services relate to sales of Canadian-made software.
There are three different ways to facilitate B-1 status for Canadian citizens:
- The "smile and a wave" method. Just state the purpose of your trip when you travel to the U.S., or
- The "official looking letter" method. Have your Canadian employer prepare a letter stating the purpose of your trip, or
- Arrange for creation of a form I-94, with B-1 status. You can use this form for subsequent entries into the U.S. (Canadian citizens do not have to give up this form when they leave the U.S. for Canada.)
The B-1 is not a work permit. If you do need a work permit, first try the TN. It's quick. You get it right at the border. Employers and clients love it, especially if they're used to going through the time-consuming H-1 paperwork. I've seen many Canadians go through the H-1 paperwork unnecessarily.
To get the TN, your profession must be on the NAFTA-TN list of professions.
If your profession is not on the TN list, you may need the H-1. You need to first apply to the labor dept. Then, apply to the INS. You pick up your I-94 at the border. (Canadians do not need passport visas.)
Once you get into the H-1 and other permits, costs in time and hassle increase. You may find that the expense isn't worth the revenues generated by a four month contract. In these case, try to make the B-1 work.
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4. Is there a minimum number of days an L-1 holder must stay in the U.S. every year?
ANSWER: Good question. Many people look at the name of the visa, "The L-1 Intracompany Transferee", and say "It's not for me. . .I'm not being transferred to the U.S." They feel it's not for part-time work.
This is a misconception.
The L-1 temporary work permit is very flexible. You can come to the U.S. part-time or full time.
In fact, as long as you are performing services for the U.S. subsidiary, you can still be paid through the overseas parent. (Of course, you can be paid from the U.S. subsidiary, if you'd like. The INS may find it easier to deal with, if your salary comes from the U.S. subsidiary.)
Savvy human resource managers use this permit to cut expenses. I have seen forward-thinking companies:
- assign one experienced Canadian sales rep to cover a combined contiguous cross-border geographical area. . .instead of hiring another U.S. rep.
- hire one VP for human resources to manage both Canadian parent and the U.S. subsidiary
- equip one team of technical service specialists with work permits. The team can be on call to service either U.S. or Canadian customers.
Once you get your green card on the priority worker transferee category, you must then intend to work full-time in the U.S. Even then, though, extensive travel to assist the parent company abroad is allowable. (The priority worker transferee green card requirements are similar to those of the L-1.)
Incidently, Canadian tax accountants tell me that this flexibility allows for some excellent tax planning opportunities for Canadians. . .especially during the first year of L-1 status. If you need such an expert, refer to the list of international specialists.
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5. Can my spouse work if I'm on a TN or L-1?
ANSWER: No problem. You can change your status to permanent residency, in which case your spouse would be able to work on her green card.
Your spouse could also change from TD (dependent of a TN) to a temporary working visa. This is the same for L-2 (L-1 dependent), E-4 (E-2 dependent) and H-4 (H-1 dependent) spouses.
In the NAFTA agreement, the Working Group's mandate is to move towards allowing TD's to work, without having to find an employer sponsor. This is not reality yet. I will let everyone know when (and if) it happens. Register on the News page to receive updates.
The issue of spousal employment is a big one. It's the "human resource issue of the 90's". Here are some options:
- Get your green card. The entire family then gets Green Cards and work permission automatically.
- The spouse gets his or her own work permit. You already know about the TN. There are also the H-1 and other permits. Chapter 6 of the Canada-U.S. Business Immigration Handbook is devoted to "Spouses and Families".
- Study. TD's can study. This is a way to productively spend time while waiting for the green card.
- Volunteer Work. This is a popular option for our clients. It must not be the type of work for which people are usually paid. Also, there should be no indirect form of reimbursement (expense account, provision of a vehicle, etc.) that the INS could view as wages. Be sure to check with the Dept. of Labor to ensure that the volunteer work does not fall under Labor Department minimum wage requirements.
- TD spouse Lives in U.S. and Commutes to Work in Border Community. If you live in a border area, the spouse can live in the U.S., while commuting to work to Canada. This often enables family members to continue to work in Canada while living in the U.S.
- The TD spouse continues to live and work in Canada. In a number of cases, the spouse continues to live and work in Canada. The principal L-1, TN or H-1 lives and works in the U.S., often splitting his or her time between the U.S. and foreign homes. It is perfectly permissible for the employee working in the U.S. to split time in this way. This, of course, requires spending time apart, but there are quite a few of our clients who have done this.
Summary: The best solution for most of our clients is the first option---get the Green Card fast.
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6. Should I renew a TN at the border or by mail?
ANSWER: Either way is fine.
You can extend your TN OR L-1 stay in two ways:
- Appear at the border
- Mail in your extension application
There are advantages to each approach. By comparing the number of entries on these two lists, you'll see my favorite approach of the two:
Advantages of Renewing By Mail:
- You don't have to make a trip to the border. You can do everything from the comfort of your home/office.
- You don't have to take your family to the border. (Remember, your family needs to renew their TD's or L-2's before they expire, too.)
- With foresight, you can mail well ahead of the expiration date. You'll get the approval (or a kickback you can respond to) well before you need it.
- No tough face-to-face questions from an inspector.
- Results are more predictable. INS Regional Examiners do nothing but review mailed applications all day. Border Inspectors wear a variety of hats.
- If there's a problem, you're in the U.S. and can fix it. You can keep working while your application is pending. If you're applying at the border, you'll be sitting on the wrong side of the bridge (or you'll miss your flight) while scrambling for the missing piece of paper.
- Less stress. Travel can be stressful enough, without having to worry about an afternoon at the airport or bridge.
Advantages of A Border Application:
- You can wait until the last minute---if your paperwork is perfect
- No form I-129 or I-539 is necessary. The I-129 mail-in form asks if your employer has ever filed a permanent immigrant petition on your behalf. This could raise questions about whether you have the "temporary" intent required for TN status. See the question on this page about the effect of prior green card filings.
- Some borders and people there have good expertise. See the Peace Bridge page for an example of such a place.
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6A. Can I change employers while on a TN?
ANSWER: Yes. You will need approval of another TN application before you can start work with the second employer.
We can do this for you either at the border---or if you have enough lead time---by mail. Here are some points that may help:- "Ten days to get out of town": Once your employment terminates you have ten days to leave the country if you have not applied to change to another permit. The B-1/B-2 is a fine interim alternative. You can stay in the U.S. while the timely filed applications are pending. You cannot start work for a new employer until the TN is approved.
- How to shed the TN: To avoid TN amendment applications (and to avoid TN renewals altogether) allow us to help you and your employer get a Green Card.
- Double dipping is OK: If your two employments overlap, that's fine. You can have more than one TN at once.
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7. Will my Green Card application cause trouble when I renew my TN?
ANSWER: No. Not if you plan your strategy.
Thanks to the wonderful "doctrine of dual intent," you can have both the intent to remain in the U.S. on a temporary and permanent basis---at the same time. (Who said law isn't flexible!) Therefore there's no problem having a green card application pending while you are renewing your temporary TN status.
The regulation for L-1's and H-1's state what you need to show if you are renewing your permit and have a permanent application pending. To be safe, you should be prepared to show the same things for TN renewal. Register at the Electronic Newsletter to be automatically advised of new developments.
This dual intent doctrine is in the regulations for L-1 and H-1 permits, but is not written anywhere for TN's. Right now, the INS generally treats TN's under the same doctrine. This could change.
Special Advantage to Canadians
Also note that may TN Canadians help their cases by traveling to Canada frequently. This means that if you are making a trip to Canada before getting your green card, your entry into the U.S. is "temporary" even if you have a green card application pending.
Furthermore Canadians do not need a passport visa. They do not need to pass scrutiny at the U.S. Consulate.
By Mail vs. at the Border
There is no form to fill out for the initial TN visa application. There is no requirement to disclose any pending green card applications. The Free Trade Officer would have to ask specific questions or take special efforts to check the computer. Right now they are not particularly interested in this issue. The TN is the main permit we handle, and I've only received one comment from an officer regarding permanent intent since the CFTA and NAFTA.
The inspector will be more likely to ask questions about pending green card applications the longer you stay on TN status. (Incidently, if you are asked any questions, always tell the truth.)
If you "renew" your TN at the border, there is no form, but if you renew by mail there is a form which asks if your employer has filed an immigrant petition for you.
(See other questions in this FAQ about mail versus border renewals.)
Practical Pointers
Here are some strategies to minimize intending immigrant problems:
- Show H-1 and L-1 type dual intent:
- employment goals fit within the time period requested
- the temporary permit is not for principal purpose of entry in advance of immigrant visa availability
- will transfer abroad if employee doesn't have permanent status before extension period expires
- prior history of little use of foreign workers in temporary/permanent status
- no prior use of illegal aliens
- employment bona fide-not an accomodation
- established program for rotation of personnel exists
- position abroad to use for employee when temporary U.S. assignment ends
- employee not stockholder. If stockholder, show a record of international entrepreneurship
- employee has history of maintaining correct U.S. immigration status
- beneficiary's history of employment status, especially prior employment overseas
- employee could reasonably continue career outside of U.S. after period requested ends
- emphasize "temporary" elements in the TN job duties with a finite completion date
- Get your green card before you have to renew your TN. Many readers delay green card applications fearing TN renewals will be jeopardized. Ironically, the longer the wait, the greater the danger. Have your employer contact us to begin the process.
- Set up a job with a temporary mission to complete on TN status. Set up another prospective job description for your permanent residency application.
- Maintain a residence in Canada. See the question in this FAQ about returning green card residents. That question gives you ideas for links you can show to Canada (That question shows links to the U.S. for green card holders. Just reverse the links--- show them for Canada).
- Outsource scheduling and documenting your applications to a business immigration lawyer.
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8. Is there a future for a TN visa holder?
ANSWER: There is no top limit on the number of years a person can be on temporary TN status. Nevertheless, I expect that some day INS will say "no more renewals. . .after all, this is a temporary visa." Review current developments regularly for any news on this.
Go for your green card if you're going to be in the U.S. for a while.
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9. I'm going to get my TN visa soon? How long should I wait before applying for my Green Card?
ANSWER: You can apply for permanent residence whenever you like. Because of long processing times, you should start assembling the paperwork ASAP.
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10. How can I change from an L-1B to a Green Card?
ANSWER: If you acquired your L-1 based on specialized knowledge (an L-1B), I would consult with a lawyer to see if you can avoid an individual labor certification. Normally people who use the "specialized knowledge" category cannot qualify, but there may be a way to do it depending on your facts.
People on L-1A's (managers and executives) can, on the other hand, easily switch to permanent residency through the priority worker green card category.
You can get this green card at the "speed of light." (Note that the speed of light measured by government paperwork standards, is not quite the same as the actual speed of light!)
These green cards have two additional requirements not present in L-1 rules:
- you must be a manager or executive (specialized knowledge is not enough), and
- the U.S. subsidiary must be doing business for at least a year (new start-up companies do not qualify).
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ANSWER: The National Interest Waiver is a nice way to get out from under the infamous labor certification.
If you have a Master's degree look into this. Even if you only have a Bachelor's degree, substantial employment experience can substitute for the missing academics.
What does national interest mean?
There are no clear rules.
This is both good and bad. It's good, because you and your lawyer have a good deal of latitude in showing that you fit into the category. It's bad, because you don't get a clear advance picture of where you stand.
Here's some new information that may help. This is official information from the INS Northern Service Center:
To qualify for an exemption from the requirement of a job offer, and thus of a labor certification, you must submit Form ETA-750B, "Statement of Qualification of Alien" in duplicate and evidence to support your claim that such exemption would be in the national interest.
Factors that may be considered in determining national interest include but are not limited to improving the U.S. economy, improving health care, improving education and training programs, creating employment opportunities, improving wages and working conditions, improving the environment, improving cultural awareness and diversity through artistic endeavors, and significant scientific contributions.
The evidence should establish the significance of the program or activity in which you are engaged and the significance of your participation in the program or activity. What consequences would occur of you were unable to begin or continue your participation in the activity? What have you already accomplished in the field? How would your participation in the program or activity have a greater impact than others in the field? You may submit letters from recognized national experts in the field explaining how your participation would benefit the national interest. If there is an interested U.S. government agency, submit a letter from an official of that agency.
There are no official guidelines for national interest waivers. We have copies of several previous AAU decisions and often refer to them for guidance.
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12. How can I keep my Green Card while working abroad?
ANSWER: Many people ask this, for example:
- Green Card holders, working for a U.S. company, transferred to an Asian division
- executives laid off by restructuring, returning to Canada to work
- employees of multi-national organizations, who are needed back in Canada
Your job situation is becoming common as our economy becomes internationalized.
You shouldn't have a problem, if you take some advance steps.
Here are a few. Also, check section 4.6 of the Handbook.
- Apply for a Returning Resident permit. This will create a presumption in your favor, should your green card status ever be challenged. Even though the instructions on the form say that the Returning Residency permit is for those who are leaving the country continuously for more than 1 year, file it anyway---even if you'll visit the U.S. before the year is up. You can use form I-131 from the Handbook. Also look into filing for the little-known "Advance Application for Preservation of Residency for Naturalization Purposes."
- Always file a 1040 income tax residents form, not a 1040NR. As we say in our office: "A 1040NR is an 'N-O' " There's a new immigration law---which many accountants do not yet know about--- which creates a presumption that you've abandoned your green card, if you benefit from filing a 1040NR. If you do not have an accountant well-versed in expatriate tax matters, get one. You may wish to refer to the names and addresses at this Web site. (My bias: I've never wasted money on a good accountant.) There may also be some tax planning opportunities for you.
- Have physical property in the U.S. where you can stay when visiting. Best, is home ownership. Second best, a lease. Even a sublease is better than nothing. You can then meet the "pillow requirement". (INS inspectors will often ask, "Where do you live? Where does your head hit the pillow?" You'll have an answer!)
- Try to come to the U.S. as much as possible for visits. Note that
in addition to the above steps needed to preserve your residence,
naturalization requires a certain period of actual physical presence in
the U.S. There are some exotic exceptions, but generally you need to
spend 2 1/2 of the past 5 years in the U.S. (counting from the day you
file for naturalization) to qualify. (1 1/2 out of 3 years, if married
to a U.S. citizen.)
One of these exceptions if for people working on U.S. government contracts. Check to see if your prospective employer is working on any such projects. Then see if you can be assigned to them.
Incidently, the law on the subject is this: as long as you intend to keep your green card, INS cannot lift it. The above factors create presumptions as to what your intent is.
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13. Can someone hold dual U.S.A. and Canada citizenship?
ANSWER: Yes. See our U.S. citizenship page.
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