Representing Canadian Businesses and Professionals for over 15 years
Here are the archived news releases from older editions of our Electronic Newsletter. We include these materials in response to reader demand. Typical requests begin with: "Whatever happened to your article about...?"
For fresh information, see the current Electronic Newsletter.
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This page contains developments too new to include in the pages of the Canada-U.S. Business Immigration Handbook or in the FAQ (Frequently Asked Questions). Bookmark it and have a virtual subscription to this electronic newsletter.
Astute recruiters and HR managers look beyond the border. This is because the qualified candidate may not live in the United States. Canada---with compatible educational and business systems---is a productive source for hard-to-fill positions.
There's a wealth of special immigration opportunities for Canadians. This particular Web page looks at the dynamic nature of these opportunities.
Keep this page on your hotlist/bookmarks to take advantage of fleeting opportunities. Heed warnings before it's too late.
This section also provides information to support clients of our office.
Please note: we often include reader feedback---one of our best sources of news. When we include this information, we change identifying facts to protect confidentiality.
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(December 16, 1996)
Peter McCarrol wrote:
I was browsing through your web site, and I noticed on page http://www.grasmick.com/security.htm that you said, on the top of obtaining SSN's, "You must show Social Security a valid reason for this number. Reasons include identification for school or to open bank accounts."
I have recently gone through this experience with my wife (a Canadian citizen on an L-2 visa, I am a NZ citizen on an L-1 visa). The SSA's current policy is that SSN's will not be issued for the purposes of obtaining bank accounts or credit cards (they suggest asking IRS for a Taxpayer Identification Number instead). They won't even issue one for the purposes of getting a drivers license (they give you a form letter to give to the DMV office.)
I thought you may like to know this.
Regards
Peter McCarrol
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(December 16, 1996)
Recently discovered you're a dual Canada/U.S. Citizen? Planning on giving up your U.S. Passport to save taxes?
Watch out.
You may be forever barred from coming to the U.S.
Citizens who renounce for tax purposes are now "undesirables". They are on the same list as the ax murders, drug dealers and polygamists.
Because this law is so important, I reproduce it here:
Sec. 352. Exclusion of Former Citizens who Renounce Citizenship to Avoid United States Taxation.
Any alien who is a former citizen of the United States who officially renounces United States citizenship and who is determined by the Attorney General to have renounced United States citizenship for the purpose of avoiding taxation by the United States is excludable.
INS will probably implement regulations with exceptions---probably for lower net worth individuals and born dual citizens. For now, we only have this strict statute.
Sit tight for now.
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(December 16, 1996)
We were pleased to discover our inclusion in the New Hampshire Business Review (v. 18, pp. 18A, 3-29-96) as a "Top Ten Internet site for International Trade".
HR and project managers may also find these sites helpful:
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(December 11, 1996)
Many job seekers and recruiters believe companies should stop interviewing and hiring during the holidays.
This is not the case.
According to James Challenger:
If you are looking for a job, you may never have a better chance than during the holidays when at least half your competition sits at home waiting for the holidays to be over.
There are several industries where jobs are actually going unfilled...including high tech...Budgets for next year for many companies have been decided so those companies that plan to add staff are interviewing now. Job searchers should strike while the iron is hot.
Challenger is president of Challenger, Gray and Christmas, (!) Inc., an international outplacement firm with 24 U.S. and foreign offices. His comments were in the Buffalo News.
While job searching we invite you to use our FAQ. The FAQ suggests strategies to use when requesting immigration support from prospective employers.
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(December 10, 1996)
I am just writing to pass on my experience of renewing my TN Visa at the Mexican-US border.
I am a Canadian working as an Engineer in Houston, Texas with a TN-1 Visa. Recently I had to renew my TN-1. Instead of renewing by mail, my wife (TD Visa) and I drove to Brownsville, Texas (7 hrs) which is a border town of Mexico and the U.S.
We went to the US immigration office and they said we had to cross into Mexico. So, we walked across the bridge. . .then returned to the immigration office, presented our passports, I-94 cards, marriage certificate, diploma, letter from employer requesting a renewal for one year, and money.
There was a little confusion on their behalf but they finally found someone who knew about the TN Visa. They tried to charge $50 each for the renewal plus $6 each for the I-94's but after I suggested that they might want to check the cost on the TD visa they charged $50 for my TN and $6 each for the I-94s...We were happily on our way within 1/2 hour. They were really helpful and friendly at the immigration office.
It was a long drive down to Brownsville, but South Padre Island nearby is a nice excuse to drive down, renew and then have a couple days of vacation.
By the way, I really enjoy your web page. It has given me a lot of guidance and info that otherwise would be very difficult to impossible to find. Keep up the good work!
Russell W. Hegler (bear@eagle.org)
Naval Architect
ABS America
Russell, I'm glad things went well. If they hadn't you would have had a long vacation in Matamoros!
As Russell kindly reminds us, Canadians can apply at the Mexican/U.S. border. Canadians are not limited to Canadian/U.S. ports.
Nevertheless, Russell's experience shows that Southern borders are not accustomed to Canadians. Mexico is NAFTA party, but procedures for Mexicans is very different than for Canadians.
The FAQ lists advantages of each approach: mail vs. border renewals. One big advantage of mail: if something goes wrong you are in the U.S. living and working while sorting it out. If you're on the wrong side of the border you may find yourself booking a Mexico City-Toronto flight!
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(December 10, 1996)
Observant readers will note changes in our home page, and the TN-1 page
As our site grew, it became harder for you to find the pages you needed. The new format incorporates a left index column to improve navigation.
Many thanks to the scores of readers whose brains I "picked" during the process.
If the format helps please let me know. I will then remake the other pages.
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(December 10, 1996)
We are now one of Netguide's "Best of the Web" reviewed Websites.
According to Netguide:
The site will be especially useful for U.S. or Canadian companies sending employees to the other country.
Netguide reviewed our page: Mega-Directory of U.S./Canada International Experts-U.S. Trade Center Directory. We received the maximum four star rating in all categories: Content, Design, Personality and Overall.
I'd like to take credit but it goes to the U.S. Trade Center. The Center writes and maintains this comprehensive list of Canada/U.S. trade professionals.
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(December 9, 1996)
A reader shares his frustrating experience at one of the tougher ports of entry:
A short while ago I contacted you with a few questions about TN visas. Your answers were very helpful
However, I have applied at the INS station. . .as a computer analyst and I was turned away because my Diploma contained the word "Programmer". My Diploma is a 2-year "Business Computer Programming". I have also worked in the computer industry for the last 9-10 years or so.
As a result of this I lost the original job I was offered as well as another one. The company said that they can hire me as soon as I can get a TN visa.
Am I eligible for a TN Visa?
Yes.
Based on your facts, the denial was wrong. The law is not applied this way at other ports of entry.
Here are the requirements for TN-1 Systems Analyst:
- Bachelor's degree, or
- 2 year post-secondary diploma and 3 years' work experience, or
- 2 year post-secondary certificate and 3 years' work experience
There's no prohibition against a "programming" certificate. In fact, rare is the 2-yr. TN systems analyst with a diploma that says "systems analysis". Even a conservative reading of NAFTA mandates approving your TN.
It is crucial to prove to the border folks that your prospective U.S. job is that of a Systems Analyst. Even Programmer Analysts qualify. See the Dictionary of Occupational Titles, and track the DOT description in your paperwork. (Could this be part of the problem?)
Also see our page with computer industry-specific information.
I suggest you retain experienced border immigration counsel to turn this around before you lose any more income. See the FAQ on how to choose an immigration lawyer.
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(December 9, 1996)
The 1998 visa lottery will only help a few readers
This is because people born in Canada do not qualify.
The purpose of the visa lottery is to increase immigration from countries that do not send as many people to the U.S. For years, Canada has immigrated too many people to qualify.
Nevertheless, some readers should pay attention:
If you do qualify, good luck! The requirements for this lottery are the same as for the last one. The application period will begin on February 3, 1997. It will end on March 5, 1997. Complete instructions are in the Canada-U.S. Business Immigration Handbook.
Our office handles lottery applications only in tandem with another immigration application. If we are already handling your immigration matter and you qualify, please e-mail or call.
If you need legal counsel just for a lottery application I would be happy to refer you to a lawyer.
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(October 22, 1996)
This month's Forbes Magazine reports that:
The top ten semiconductor companies have 12,000 open positions. Pay of computer engineers has risen by two-thirds over the last decade. "Life is sweet," chuckles Michael Trafton, a 26-year-old software engineer for a small Boulder, Colo.-based company. Four years after graduating with a B.A. in computer science from Rice University, he makes $175,000. Over the next decade industry will need 730,000 computer engineers and systems analysts. Also in high demand: electrical engineers, software developers, radio frequency engineers. Where are the companies going to find them?
A select crew of savvy managers would answer: "In Canada!" One country's labor shortage, is another's surplus.
Our job-seeking readers may not yet taste this sweetness. Why don't more companies recruit Canadians?
I hear these reasons, and give these responses:
"My lawyer said the candidate doesn't qualify for an H-1."
Rare is the sought-after Canadian that won't qualify for the TN. Our page about immigration for Canadian computer professionals lists many options.
"Immigration paperwork takes to long. I need someone now!"
TN border applications take 20 minutes. Our FAQ lists ways to expedite the process.
"Do they speak English?"
Yes. I just spent three days in the Gaspé---a bastion of traditional French Canada. I lectured in English.
A bilingual Canadian can be a tremendous asset. Along with two languages, comes cross-cultural understanding---a definite plus in the global high tech market.
Most Canadians are English-speaking monolinguals. Nevertheless the multi-lingual national policy (whatever the political merits) produces a workforce exposed to doing business across cultural lines.
"Nobody else does it."
Do like everybody else and you'll be like everybody else. Leaders are not limited by the myopia of conventional wisdom.
"It costs too much to relocate a Canadian."
Many companies pay recruiters 20% of the first year's salary. Others set aside up to 30% of the company's equity as options to attract new employees. Business Week reports that one company awards new cars to employees who find a new employee!
Relocation expenses and legal fees will be a fraction of this.
"Once they're here they'll leave for another employer."
A temporary work permit holder can only work for the sponsor. Yes, one is free to leave the company with a Green Card, but there are even good reasons to sponsor someone for permanent residency. (See the question "...passport to leave..." at the FAQ)
"It's not politically correct. They'll take jobs away from Americans."
Most of our clients create jobs for Americans, by their presence here.
"How do I find one?"
Canada has a well-developed recruitment network. There are many excellent cross-border newsgroups, Websites, on line help wanted ads and recruiters. See our links to start.
You can set yourself apart from other employers by simply stating "Applications from Canada welcome." Provide sponsorship and legal fees to successful applicants for hard-to-fill positions.
What excuses have you heard?
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---MURPHY LOGGING CO. V. UNITED STATES, 378 F.2d 222 (1967)
(October 21, 1996)
Reader (and Chicago tax accountant) Richard S. Levine sent me valuable reminders concerning cross-border tax planning. Since this may help many of you, I've passed it along:
Your readers may not be familiar with the system of taxation imposed by the United States on its citizens and residents. When these individuals move to the United States, they are often unpleasantly surprised by the long arm of the U.S. tax collector. Unfortunately, by the time they discover how the system works, they have already taken up U.S. residence. The ability to redirect their income is significantly reduced.
Background - U.S. Income Tax
Citizens and residents (as defined for tax purposes - which includes more than merely those who have been admitted for permanent residence/"green card" holders) of the United States pay federal income tax on their worldwide income. In addition, there are numerous anti-deferral and penalty tax regimes which apply to the undistributed income of foreign corporations owned by U.S. persons. This can come as a shock to those individuals who are more familiar with a territorial system of taxation in which a particular country imposes tax only on income which is earned within that country - and who may believe that their "offshore" income will always be exempt from income tax. Even more shocking is the impact when they are forced to pay tax on income earned by their offshore corporations---income which may never be distributed to the U.S. shareholder and which may create a severe cash-flow problem for the business if it must be removed from the corporation to pay U.S. taxes.
Background - U.S. Estate Tax
A person who is domiciled in the United States is usually subject to U.S. estate tax on all worldwide assets. Since the maximum estate tax rate is currently 55%, an unexpected death shortly after moving to the United States can quickly wipe out a substantial portion of a family's hard earned wealth. Most or all of these assets may have been earned outside the United States before taking up U.S. residence. This result is tragic. It can be avoided with proper planning.
"Domicile" for estate tax purposes is not the same as "residence" for tax purposes. In many cases, an individual can be a U.S. resident for income tax purposes but not a U.S. domiciliary for estate tax purposes. Arranging one's affairs to obtain this status is often a relatively easy way to dramatically reduce exposure to U.S. estate tax.
Background - U.S. Gift Tax
In addition to estate tax, persons who have a U.S. domicile are generally subject to gift tax on all gifts in excess of certain annual limits. This is regardless of the location of the property given.
As with the estate tax, U.S. gift tax rates can be as high as 55%. To the extent that the potential immigrant has family members or favored charities that are located outside the United States, it is prudent to consider either avoiding U.S. domicile, or if this cannot be accomplished, placing some assets in a foreign trust to avoid future gift taxes.
Solution
Proper tax planning can help potential immigrants minimize subsequent exposure to U.S. tax jurisdiction. Common techniques include the use of trusts and reorganizations of foreign corporations to reduce the ownership attributed to the U.S. shareholders.
The rules in this area are very complex. It takes education and experience to prepare a structure that will avoid all or most of the burdensome reporting and tax-paying requirements. Make sure your tax adviser has the education and experience to properly advise potential immigrants regarding their U.S. tax planning. This is a very specialized area of law. Many professionals who are quite competent tax advisers in general are not equipped to give adequate advice to non-residents.
Furthermore, in light of the recent changes to U.S. tax treatment of foreign trusts, I urge all potential immigrants and their immigration attorneys to review their plans with knowledgeable tax counsel as soon as possible. Many of the "standard" tax structures for immigrants have been rendered worthless by the new laws, with effective dates retroactive back to February of 1995. Moreover, there are now "look-back" provisions which will unwind tax planning which is put in place up to 5 years before taking up U.S. residency.
Immigrants with any significant amount of non-U.S. assets cannot afford to forego careful tax planning before they arrive here. The difference in tax results can be astonishing.
---Richard S. LeVine (rlevine@dancona.com)
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(October 4, 1996)
Many Canadians have found that the best way to deal with the harsh Canadian winter is to not deal with it at all. Instead they fly to sunny Florida, or other locations in the southern United States, for several months out of the year. Although the weather can be enticing, Uncle Sam's tax collector, the Internal Revenue Service, may have a few unpleasant surprises for the unwary.
James Yager and Calvin Eib author a new Webpage for "snowbirds": Canadian Snowbirds and U.S. Tax. It provides an overview of the potential tax pitfalls, and how to avoid them, when:
James also maintains two other joint Web pages at our site. Thousands of you have already read these pages:
On behalf of our readers, many thanks to James and Calvin for this high quality content. Thanks to you and to Richard Brunton, this immigration site has also become a leading source off Canada/U.S. tax information.
I am also indebted to our office manager April Deas who has acquired an expertise in HTML financial tables. It's not easy to make these tables work on all of your browsers!
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(October 3, 1996)
See our new Web page describing a forthcoming Toronto executive transfer seminar.
The seminar will be November 27-29, 1996 at the Inter-Continental Hotel. It is sponsored by the Canadian Institute---Canada's largest seminar producing organization.
This is an annual seminar, and is certainly the best on the topic. I've been pleased to participate as a speaker for the last several years.
Here are some of the things you will learn:
Here are some of the people who should attend:
The seminar always features the top names in cross-border accounting, human resources and law. Speakers will include human resource specialists from leading international companies.
Details, including registration forms and information, are on our new page.
If you sign up, please mention that you are referred by the Law Office of Joseph C. Grasmick. You will receive a 10% speaker's discount.
I hope to see you there!
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(October 2, 1996)
I was denied access for a TN visa under the title of Software Engineering Technologist for temporary 1 year. . .I do not have a degree, but I have 9 years experience in the field.
I was denied based on the fact that the officer has seen many people come in to the US under this designation, so he is becoming more discriminate. I plan to try again at the Airport in Toronto shortly. I am a Canadian citizen. Can you offer any advice?
My response:
Sorry to hear this. . .Note that you're probably in the computer system, shared by all ports of entry. If you do indeed try again, make sure you know what you're doing.
Scientific technicians are quite tricky categories. This is because there are no black and white academic or employment requirements. INS is starting to feel that there is some "abuse" in this area...a feeling underscored by the comments made to you.
Check out the computer page if you haven't already done so.
We suggest you contact our office before you try any of the TN-scientific technician categories...especially if you are in the computer industry.
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(September 30, 1996)
The I-94 Tug of War at Airports (August 28, 1996) continues:
Joe, I just thought it may be useful to your readers to be aware of the INS's stand at the Dallas/Fort Worth airport on multiple-entry I-94's attached to a passport bearing a valid TN-1 visa stamp.... they don't accept them (sometimes). The DFW folks won't issue a multiple-entry I-94 when they issue a TN-1 Visa. If you happen to travel up to Toronto and back, the Toronto INS folks may ask why you don't have a multiple entry I-94, and then issue you one. If you then enter again via DFW, the INS folks there may tell you that you must have an I-94 form filled in each time you enter the country, even if you have a valid multiple entry I-94 in your passport. On the other hand, the officer may tell you that, "If you have a multiple entry I-94, there is nothing they can do about it. Welcome to the United States."
I believe the official directive is for multiple entry I-94's to be issued with TN-1 visas, but DFW just doesn't seem to like them.
Recommendation, fill in an I-94 every time you go through INS in DFW airport. Put it in your pocket. If the particular agent you speak to asks for it, pull it out and give it to him or her. It sure saves getting bounced out of line to fill one in and then lining up again.
I have found all of the INS people at both ends of the country to be very helpful and polite. It just seems they have different sets of rules to work with.
Hopefully this might save some travellers some unnecessary delays.
Regards,
Mike Renshaw
mrenshaw@ix.netcom.com
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(September 30, 1996)
How can I convince the employer to sponsor me?
This is one of the more popular FAQ-Frequently Asked Questions.
The answer?
Educate the employer.
Several pages at this site have a new link which may help. Look for this link (or try it now!):
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)
This software intercepts standard sized pages on the way from your web browser (or any other Windows application) to your printer, shrinks them, and rearranges them into a booklet. It prints out an instruction sheet for easy second side printing. Use it to print any 4 booklets of your choice. After you print 4 free booklets, you can instantly buy the software (it's cheap), or cleanly remove it from your computer.
We invite you to use this Web site when negotiating immigration benefits with employers. Show the employer the special quick and easy work permits available. This can be especially useful where the employer has already had negative experience with time-consuming paperwork for previous employees. You may even wish to deal with the issue head on---attach selected materials to your resume.
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(September 20, 1996)
The INS announced today that it fined the Buffalo Bills quarterback's former night club $52,540 for knowingly hiring and continuing to employ two illegal workers.
Jim Kelly's now defunct club----Network---was among 16 Western New York businesses assessed $123,000 in penalties.
According to District Director Ingham quoted by the Buffalo News:
We are aggressively pursuing employers who do not comply with the law requiring them to hire only authorized workers and to document that all workers are legally authorized to work.
I warned our readers over seven months ago. (DANGER FOR EMPLOYEE TRAVEL FROM ONTARIO AND QUEBEC, February 8, 1996) In that article I asked readers to "Carefully review the immigration status of your employees who need to travel to the U.S. from Ontario and Quebec. The INS is now doubling its deportation efforts along the Canada/New York border."
You say you never come near Buffalo?
Take heed nevertheless: the Clinton administration is sustaining a record pace for nationwide deportations and renewals. Through the first ten months of this fiscal year INS removed 54,362 people, exceeding the record 50,200 removed last year!
How does this news affect our respectable Internet readers?
Business travelers will be caught in the Web...especially in the grey area of business visitor (B-1) travel.
It is no longer a mere inconvenience, when an employee is turned away. Now, INS has the resources to create a snowballing problem:
The solution?
Survey all your employees who may be going to the U.S. on company business:
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(September 20, 1996)
I'm pleased to report that we'll be featured in the
1997 Canadian Internet Handbook.
The Handbook will include a screen shot of a Web page from this site.
The Canadian Internet Handbook is the most authoritative book about the Internet for Canadians. Past editions of this national bestseller have sold in excess of 350,000 copies in Canada. It is the de facto source of information for Canadians eager to understand the potential of the global Internet. Jim Carroll and Rick Broadhead coauthor this excellent publication.
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(September 11, 1996)
Today the Peace Bridge logged a record number of truck crossings---4,825 in a single day!
NAFTA immigration crossings at this bridge are also increasing. More and more Canadians use the Peace Bridge for B-1, L-1 or TN border applications.
The historic Peace Bridge is in Southern Ontario near the homes and businesses of most NAFTA applicants. The US Immigration and Naturalization Service Office is one of the busiest and best-equipped NAFTA immigration locations.
Because of the expertise concentrated here, many Canadians outside of Ontario also use these NAFTA facilities. These people can often conveniently schedule a NAFTA appointmnent with other business or personal matters in the Toronto area.
Our Buffalo location at the nearby Cyclorama Building allows us to walk our clients through the NAFTA immigration interview. We first meet in Fort Erie, Ontario, to go over the applications. We then help our clients navigate over the bridge, through the booth and into the INS office for our appointment. (Trace these steps on area maps.) We can then personally accompany our clients to the Social Security Administration Office to get Social Security Cards.
Our clients can then take advantage of our personal assistance to speed up acquisition of items for future applications. This can include photographs and fingerprints for future Green Card applications.
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September 18, 1996
A Canadian mining company was recently punished by the United States for investing in Cuba. (See CANADIAN EXECUTIVES BARRED FROM THE U.S.A., August 8, 1996.) The U.S. government announced that nine major shareholders and senior executives of the firm would be denied visas to enter the United States because they "trafficked" in property confiscated after Cuba's 1959 communist revolution.
There are
only a few companies sanctioned like this under a controversial new U.S.
law aimed at discouraging investment in Cuba. Nevertheless, you should
be aware of the law...especially if your company has links to Cuban
investments.
See our new Web page: U.S. Anti-Cuba Act: Implications for Canadian Investors. This page reprints Volume 12, Number 3 August 1996 edition of the Blakes Report. The Blakes Report is a publication of the Toronto law firm Blake, Cassels & Graydon. Authors are Jack Quinn and Greg Kanargelidis.
Jack
Quinn (jjq@blakes.ca) practices
competition and international law. He can be reached at 416-863-2648.
Greg Kanargelidis (gk@blakes.ca)
practices commodity tax and international law and is at 416-863-4306.
Both are located in the Toronto offices of
Blake, Cassels & Graydon.
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September 18, 1996
Alt.visa.us reader Ken Pratt (kporatt@nucleus.com) asks:
I have been looking into the possibility of obtaining TN status so I could accept a job in the US. I would like to get TN status and then go for a green card once in. I read in Joseph Grasmick's home page [actually, the FAQ -Ed] that this is OK due to dual intent. Then I read in the Immigration law weekly home page that it is absolutely not allowed, and could result in entry being denied. I really do not want to get turned away at the border - Who's right?
Cheers, Ken.
Another reader, Jonathan McNeil Wong (jonathan@donahue.com) responds:
They are both right. Explanation:
Before IMMACT90, the "dual intent" doctrine was an administrative and court-made doctrine. It said that an alien could legitimately have an intent to come to the U.S. for a temporary purpose, such as a visit, and at the same time intend _ultimately_ to immigrate to the U.S. In other words, the alien could say, "I eventually plan to come to the US permanently but right now, I am just here for a visit and will return to my home country and residence which I do not intend to abandon at this point in time."
The long delays in obtaining employment-based immigrant visas led a lot of employers to invoke this doctrine in the employment context, because they needed people right away and couldn't afford to wait three years. The doctrine allowed an alien to be hired temporarily on, say, an H-1B, then start an immigrant visa process and still have the H-1B renewed if the process took longer than the period of initial temporary employment.
In 1990, employers lobbied heavily for codification of this doctrine, citing the growing global nature of the US economy and the need to stay internationally competitive. The result was that Congress exempted the H-1 and L categories from the statutory requirement that a nonimmigrant "demonstrate that the alien has a foreign residence that the alien has no intent of abandoning", otherwise known as 214(b).
While strictly speaking, elimination of this requirement did not completely remove the requirement that an alien coming on an H-1 or L visa be a "nonimmigrant" -- that is, intend to leave the US and not stay permanently -- as a practical matter the principal means to measure nonimmigrant intent was the presence of a foreign residence that the alien had no intent of abandoning. This means having been eliminated by Congress, the Department of State took the administrative position that for all practical purposes, the requirement of nonimmigrant intent no longer exists in the H-1 and L categories, and instructed consular officers not to inquire about it or to use it as a basis to refuse visas.
When Congress addressed this issue, the US-Canada FTA was already in force. The FTA did not address the dual intent doctrine at all, but Congress did _not_ exempt TC professionals from the 214(b) requirement. Then came NAFTA, which treaty did not address 214(b) at all. Based upon this lack of history, the INS decided that 214(b) does apply to TN aliens because it was not explicitly excluded by Congress.
However, the fact that 214(b) does not apply does _not_ mean that the earlier administrative doctrine of "dual intent" does not apply. So, the statement that the "dual intent" doctrine applies to TN aliens is a correct statement. Equally correct is that the exemption from 214(b) which applies to H-1 and L aliens does not apply to TN aliens. In other words, evidence of a foreign residence that the alien does not intend to abandon _is_ a legitimate inquiry for a consul or FTA officer to make when adjudicating a TN application. However, if the alien can prove that the alien currently has a foreign residence, that there is no current intent to abandon that residence, and that the alien will return to the home country at the expiration of TN status notwithstanding an eventual intent to immigrate if and when a visa number becomes available, TN status can be granted. Naturally, the farther along the alien is in the process, the more difficult this becomes. It would be relatively simpler, for example, to argue that the filing of a labor cert is consistent with a foreign residence because (1) there is no reason why anyone would abandon a foreign residence unless the employer committed to hiring the alien (2) the employer does not have to file the I-140 even if the labor cert is approved (3) the employer might find a qualified US worker. By contrast, if the alien was the beneficiary of an approved I-140 and was just waiting for a visa number in order to file I-485, it would be virtually impossible IMO to prove dual intent.
My contribution to the thread:
To add to an already excellent thread, I believe the "proof's in the pudding". Whatever the law in the books, it's the law in action that counts. Except for some isolated and unfortunate incidents in Detroit (which were cleaned up by one of my colleagues) it's not a problem.
I'm seeing more and more Canadians going the painful "TN to H-1 to Green Card" route because of unfounded fears. We call this the "root canal" option in our office. (Couple this with people unnecessarily going through individual labour certifications, and you've lengthened what should be a less than one year process, to as much as three years!)
For an in-depth discussion of how to eliminate even the chance of problems, see the Canada to U.S. FAQ (dual intent question.)
The full text of the INS Central Office advisory opinion on the topic is found at the Can to U.S. Business Immigration News page. You can register that page and receive automatic updates of any news on this "dual intent" issue.
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September 18, 1996
Mergers, acquisitions and divestitures can instantly destroy your managers' immigration status.
Immigration permits depend on a certain corporate identity and structure. Some changes can immediately invalidate work permits. Other changes have no effect.
I've learned that the INS will soon propose regulations to ameliorate the consequences of corporate reorganization. (Register at the top of this page for immediate notification of these changes.)
In the meantime call us before your company restructures. Our office can provide satisfactory options, but you must contact us before the deal is done.
Here are examples of such situations:
Don't forget that employers are subject to civil and criminal sanctions for continuing to employ illegal management and other workers.
Plan in advance. Business reorganization need not jeopardize your access to the best available staff.
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September 10, 1996
On August 28 I reported that "H-1s ARE DEAD. LONG LIVE THE TNs!". (See below). The INS then announced that there were no more H-1s available for this fiscal year.
The INS now advises that their August count was wrong. There are still H-1 permits available.
From your e-mail I learned that the original INS announcement disrupted plans of many Canadian H-1 holders. If you changed to TN status as a result you're probably in better shape---you won't have to worry about the H-1 numbers in the future.
Here is the text of new information from the INS via the American Immigration Lawyers Association:
H-1B Cap Not Reached
AILA has just learned from the Immigration and Naturalization Service (INS) that their recount of H-1B numbers indicates that the H-1B cap has NOT in fact been reached.
INS has indicated that the actual number of H-1B approvals is slightly over 59,000, and that cases will continue to be adjudicated at the service centers until the [65,000] cap is reached. There was apparently an accounting error that led to the previous estimate that the cap was already reached. INS estimates that approximately 5000 cases are pending at the service centers. INS is considering a policy that will free up additional numbers against this year's cap, but has not reached a final decision.
AILA has no other information at this time.
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September 10, 1996
Reader and client R. Glenn Sellar (rgsellar@digital.net) has intense personal experience with export restrictions and security clearances. He has worked with Andrew Lipkind, a lawyer in our office. Glenn generously shares his experiences with you.
I have not independently researched these issues. Nevertheless it is clear that Green Cards and citizenship are valuable assets in the face of government restrictions on hi-tech. See the FAQ Frequently Asked Questions for a list of other benefits to Green Carded Canadians.
Contact our office if you cannot hire a Canadian because of these regulations.
Thanks for your work on my immigration application. . .As it happens, I've done a considerable amount of research on my own into various laws and regulations that affect me, including not only immigration law, but export laws and regulations, and regulations regarding security clearances. You might be surprised to know how much effect these other laws have on the employment of immigrants, particularly in high-tech industries. Since knowledge of these regulations could be of benefit to you and your clients, I thought I'd share what I know with you.
The ITAR:
Firstly, surprising as it may seem, the State Dept. considers hiring an alien to be an export. The reasoning, is that it involves a transfer of knowledge from a US entity (the employer) to a non-US entity. The important restrictions are contained in the ITAR (International Trade in Arms Restrictions) regulations (22 CFR Ch 1 Section 125 and 126.) They refer to a "US person", which the Supreme Court defined in this context as a U.S. citizen, permanent resident, or "intending citizen" (an extremely narrow INS definition of "intending citizen" covering certain exceptions where a person can become a citizen without first being a permanent resident).
Any articles or technical data about articles that are classified or are on the State Department "Munitions List" require a license from the State Department for export; and allowing a non-US person access to such data is considered an export. From company security officers, I have heard that the government personnel who enforce these regulations tends to assume that an employee has access to pretty much everything their employer does. I've been told that it is extremely difficult to compartmentalize the company facilities sufficiently to satisfy these people.
Note that, so far as I could determine, someone on a TN-visa is not a "US person" for the purposes of these regulations. I personally had an excellent job offer fall apart at the last minute because of the company's concerns about these regulations. This is, I'd imagine, a lesser-known advantage of permanent residence.
Don't let the term "munitions" mislead you; you'd be surprised what the State department put on the "munitions list". Basically anything high-tech is on there. All space related hardware, advanced optical detectors (at least they were advanced when they were put on the list), effective encryption software, and so on. You may have seen or purchased software labeled "For sale only in the U.S. and Canada. Not for export". That's because the software included effective encryption routines.
There are notable exceptions and exemptions, however. Particularly 125.4(b)(10), which exempts disclosures of technical data by universities to their full-time employees (with some restrictions and conditions). I'm not sure of the interpretation, but Canadians may also be exempt, by the following argument: Section 126.5(a) permits customs and the post office to allow export of unclassified technical data to Canada. And 125.4(b)(12) exempts "Technical data which is specifically exempt under part 126 of this subchapter".
Of course, the company can apply for an export license in order to hire the person. I've been told that in the case of unclassified data and a Canadian citizen, it is extremely likely that this licence would be granted. But it takes about 3 months to get the license, and it is not permanent and so must be renewed. The three month delay tends to negate the speed and convenience of a TN visa. But I'd expect companies might believe the argument that Canadians are exempt, if a lawyer told them this (but they didn't trust me on this).
Security Regulations
Of course a security clearance is often required for employment in high-tech industries, so I researched the Defence Industrial Security Manual. Even if the person is being hired to work on unclassified projects, the people enforcing the regulations tend to be sceptical of company claims about compartmentalizing their facilities.
Interestingly, labor laws make it illegal to discriminate on the basis of "national origin" which sometimes conflicts with companies, in practice, requiring elegibility for a security clearance. Companies no longer advertise "security clearance required" or even "must be eligible for a security clearance", but instead say "U.S. Citizenship required".
While the U.S. has an agreement with Canada (and other allies) to provide "Reciprocal Clearances", these can only be used for projects undertaken jointly by the two governments, not for a citizen of one country working for a company in the other country.
It is not well known, but it is possible to get a security clearance for a Permanent Resident. Some additional paperwork is required, to explain why a worker who is a U.S Citizen cannot be used in place of the Permanent Resident. Only a SECRET clearance can be obtained, and even then, access to SECRET/NOFORN data is prohibited. It is even less known, that a Permanent Resident whose permanent residence status is conditional (i.e. the first two years of a marriage) may not receive a clearance under this regulation!
I've just given you the highlights of my research; reading the whole of the ITAR and the Defence Industrial Security Manual might be worthwhile.
-R. Glenn Sellar
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September 10, 1996
Some
of you have already spoken with Kim M. Solar.
Kim was born in Buffalo and recently resided in New York City. She has a B.A. degree in the History of Art and French from New York University. She also studied at Cambridge University in Cambridge, England. She has an M.A. degree in the History of Medieval Art from the Courtauld Institute of Art of the University of London, England. She received her J.D. degree from New York Law School in New York City.
Kim's broad academic and employment background serves our clients well. She is particularly adept at understanding the wide variety of our clients' job descriptions. The result: successfully using these job descriptions within the strictures of immigration rules.
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September 10, 1996
A reader discovered that "INS doesn't make change at the border. Tell your clients to take exact change for TN and L-1 filing fees."
The INS will also accept checks. Make sure checks are for the exact amount.
(When a member of our office accompanies you or your employee to the border, we handle these details.)
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September 10, 1996
The
Canada-U.S. Business Immigration Handbook is now in its 8th edition.
The Handbook has been the leading print resource on the topic since the original CFTA. It is published by Carswell --- the leading law book publisher in Canada. Carswell's parent company just merged with West Publishing making it the world's largest publisher of legal materials.
You can order the Handbook on-line from the publisher. Subscribers automatically receive all updates.
The eighth release---the second this year---contains 100-200 pages of new material. This release focuses on new government forms.
Carswell will mail another release---the 9th---later this year. This future release will integrate the traditional print Handbook with resources at this Website.
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August 30, 1996
Check your browser's bookmarks. On September 30, 1996 all URLs beginning with
http://www.e-commerce.com/grasmick/
will change to
http://www.grasmick.com/
This is because I will no longer be using a mirror server. Maintaining two servers takes time away from developing real content. (I do everything myself.) Also, our main server is fast and dependable
I'm sorry if this inconveniences you. Please send me an e-mail if you have navigational problems.
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August 28, 1996
I get this question often. In fact, this issue is now a hot topic on the Usenet immigration newsgroups.
The question is now answered...there are no more H-1s left for Fiscal Year 1996. Canadians must use the TN-1 or another temporary work permit. INS has reached its annual limit, per an announcement via the American Immigration Lawyers Association:
INS Headquarters called to inform AILA that it appears that the cap has been reached on H-1B visa petitions for FY96. INS has instructed the service centers to hold the petitions for those applicants filing for status to commence before 10/1/96. These petitions are being held until INS determines how it will handle those cases. INS should have a method of handling by 8/23/96.
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August 28, 1996
August 12th demand on our server was many times its usual rate. I was puzzled, until one of you send me a congratulatory e-mail message. As it turned out, our home page appeared on Microsoft Network's recommended "Business Picks of the Week."
MSN recommended our site to businesspeople who need to sort out the "nit picky rules" of Canada to U.S. immigration.
Many thanks to the readers who have given me suggestions on how to improve this site. We've come a long way since our March 1995 inception!
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August 28, 1996
I recently posted an inquiry to one of the Usenet immigration groups:
Today I learned that the Detroit Michigan ports of entry are automatically denying NAFTA TN entries if they find out that you have a Green Card application pending. In fact, that port may even cancel valid TN permits issued by other ports of entry! . . .If you have any first hand experience with these issues please let me know.
At the risk of offending our Detroit readers, I include the full text of a response:
Hello Joseph,
This just confirms my experience that Detroit, MI, is possibly the WORST port of entry in the country. Then again, if you had to live in Detroit instead of Buffalo, you would be cranky too.
You might advise folks that Port Huron, MI, is only an hour or so north by car (opposite Sarnia, ON). My experience there last year was very positive. The INS staff were courteous, efficient, and very helpful.
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August 28, 1996
The further from the border, the less knowledge of immigration rules for Canadians. One of our clients---a high level manager for a large Canadian company---emails this report:
Hi Joe
I have been traveling in the US fairly regularly lately.
I thought you might find my recent experiences interesting...
Returning from the US from Reno last week, I almost lost my L1 to the ticket attendant as he was checking my luggage and my photo ID. He rips the L1 out of my passport which I had stapled in. I'm glad you warned me as I almost didn't notice it. I was surprised the ticket agent would take it. . .I expected immigration might do this at some point as you suggested. I bellowed at the ticket agent and told him to look at the date of expiry and also indicated how much it cost to obtain. (I got my L1 back).
Remember, Canadians do not normally need to give up form I-94 when leaving the U.S. Canadians can use it for multiple entries into the U.S.
(Form I-94 is the form on which various work permits issued by INS.)
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August 28, 1996
I'm grateful to C.L. Shier for adding information to our July 20, 1996 article TN's---Don't Forget Your Six Dollars.
The $6 fee (must be US cash) for each I-94 is charged at all land border crossings, however, it is NOT charged at airports.
My response:
Thanks for your message. I'll look into this. We only work at the land borders, so I didn't know this. We use checks (in U$S funds) at the Peace Bridge. So far, so good!
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August 28, 1996
Speaking of the Peace Bridge, construction could begin in 1999 on an additional span to complement the Bridge.
Truck traffic has expanded significantly as a result of NAFTA. This expansion should double the capacity of one of the busiest Canada/U.S. ports of entry.
The Peace Bridge has become the focus of NAFTA based immigration. The strategic S. Ontario location and high quality of INS expertise makes it the port of choice for many Canadian businesses.
The bridge expansion plan is not without its critics. Today, I read a letter written to the editor of the Buffalo News. The writer does not like the twin span idea, asking the public how it would feel if a mismatched span was built along the Brooklyn or Golden Gate bridges.
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August 28, 1996
Is your company really taking advantage of NAFTA?
If not, you're not alone. Even the largest U.S. companies have not acquired this expertise. An manager in a Fortune 100 company sent me this e-mail:
I have just downloaded your file "Business Immigration to the U.S. for Canadians Under NAFTA" [similar to our Overview -JCG] from the Canadian Business forum on CompuServe. As a Canadian expat who has been working in the US under an L1 visa for the past 4+ years and who is now contemplating the possibility of permanent residency in the US, I found it to be very interesting.
Even though I'm working here in the US for a very large multinational, I find that there are few people in the HR organization who understand immigration regulations or considerations---and even fewer after the downsizing of the last few years. . .it was great to find some potential source of information and guidance re this issue!
My response:
Your comments on HR knowledge of Canadians is well-taken. I am trying very, very hard to get the information in our Website, into the hands of HR people. That is my major challenge. After you visit our site, I would appreciate any suggestions in this regard.
Readers should feel free to share the FAQ -Frequently Asked Questions with others in your company. There is substantial information there re: how to leverage scarce HR resources by using NAFTA.
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(August 9, 1996)
The INS Central Office advises that TN holders can apply for Green Cards. The mere fact that a TN holder applies for a Green Card should not create TN entry or renewal problems. Canadians should not have to delay Green Card applications or go through the onerous H-1 process.
If you are a TN planning for a Green Card, carefully read the dual intent question at the FAQ-Frequently Asked Questions. Contact me if you would like us to start the Green Card paperwork for one or more of your employees.
Here is the full text of the INS advisory opinion [hypertext added], courtesy of the lawyers who requested it----Serotte, Reich, Seipp and Kenmore:
June 18, 1996
Mr. William Z. Reich
300 Delaware Avenue
Buffalo, NY 14202Dear Mr. Reich:
This refers to your letter of March 7, in which you state that a Canadian citizen was refused admission as a TN nonimmigrant under the North American Free Trade Agreement (the NAFTA) because he is the beneficiary of an approved I-140, Immigrant Petition for Alien Worker, and, therefore, could not establish that his entry was without the intent to establish permanent residence in the United States. You submit that a TN nonimmigrant may be admitted to the United States to complete a temporary employment engagement even though he or she is the beneficiary of an approved I-140 petition.
This office has oversight for the uniform application of immigration laws, regulations, and statute. It does not determine eligibility for specific nonimmigrant classification in individual cases. The determination as to whether or not an alien is eligible for admission or extension of stay as a TN professional must be made by the immigration officer at the time the alien applies for admission or extension of stay. Each application must be judged on its own merits. Nevertheless, we can provide you with a very general statement relating to the facts described in your letter.
At the present time, there is no specified upper limit on the number of years a citizen of Canada or a citizen of Mexico may remain in the United States in TN classification as there is with the majority of nonimmigrant classifications contained in section 101(a)(15) of the Act. However, the presumption of immigrant intent under section 214(b) of the Act is applicable to NAFTA professionals under section 214(e) of the Act (unlike that for H and L nonimmigrants who are no longer subject to section 214(b) of the Act). Accordingly, applicants for admission, extension, or readmission as NAFTA professionals will be subject to a determination by the Service of the applicability of section 214(b) of the Act to the applicant.
The fact that an alien is the beneficiary of an approved I-140 petition may not be, in and of itself, a reason to deny an application for admission, readmission, or extension of stay if the alien's intent is to remain in the United States temporarily. Nevertheless, because the Service must evaluate each application on a case-by-case basis with regard to the alien's intent, this factor may be taken into consideration along with other relevant factors every time that a TN nonimmigrant applies for admission, readmission or a new extension of stay.
Therefore, while it is our opinion that under the conditions as described in your letter, a TN nonimmigrant may apply for readmission in the TN classification, if the inspecting officer determines that the individual has abandoned his or her temporary intent, that individual's application for admission as a TN nonimmigrant may be refused.
I trust this response has been of some assistance to you with regard to your question.
Sincerely,
Yvonne M. LaFleur, Chief Business and Trade Services Branch Benefits
U.S. Immigration and Naturalization Service
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(August 8, 1996)
A reader just e-mailed an account of his border experience:
Hi. I wanted to thank you for your web site. Combined with other resources, it made my TN application go very easily at the Detroit/Windsor tunnel. . .Except I forgot my diploma and brought only Canadian money and cheques. Ooops. Fortunately home was only 15 minutes away.
My response:
Good thing you didn't go through an airport!
See the Peace Bridge Page for information on how our office can assist your company with these border applications.
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( August 8, 1996)
According to a recent Reuters report
A Canadian mining company punished by the United States for investing in Cuba Wednesday rejected U.S. jurisdiction over its operations and defiantly said it will push ahead with its Cuban investment.
. . .
The U.S. government announced that nine major shareholders and senior executives of the firm would be denied visas to enter the United States because they "trafficked" in property confiscated after Cuba's 1959 communist revolution.Sherritt [International Corp.] is the first foreign company to be sanctioned under a controversial new U.S. law aimed at discouraging investment in Cuba that has angered U.S. allies such as Canada. . .
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(August 8, 1996)
There are many reasons to convert your employee's TN or L-1 to a Green card. The FAQ-Frequently Asked Questions lists these reasons.
An astute reader pointed out one I missed: export restrictions.
Your web page was of great assistance when I entered the U.S. under a TN to do computer work recently, and I have recently encountered hassles on the job relating to export restrictions and the fact that I am Canadian (even with the TN). I have been told that a green card can alleviate these problems, so I want to look into it.
Readers considering Green Cards should review the FAQ and these pages:
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(August 8, 1996)
Various activist groups have asked Canadian snowbirds to stay away from Florida.
The boycott responds to the Helms-Burton law. This law bars U.S. entry for Canadians who "traffic" in U.S. property confiscated by the Cuban government.
Here are the details of the law as summarized by Interpreter Releases:
...the Secretary of State must deny a visa for, and the Attorney General exclude from the U.S., any alien who: . . . (3) is a corporate officer, principal or shareholder with a controlling interest in an entity which has been involved in the confiscation of property or trafficking in confiscated property, a claim to which is owned by a U.S. national; or (4) is a spouse, minor child, or agent of a person described in the above...the State Department is currently...notifying several major foreign companies in...Canada...that they soon may be subject to punitive action as a result of their investments in Cuba...the State Department initially will send letters to several companies warning that the firms' top executives, major shareholders, and their immediate families could all be denied U.S. visas under the new law.
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(July 20, 1996)
It will soon be election time.
Many are surprised to learn that foreign nationals may not make contributions in connection with any election -- Federal, State or local. This prohibition does not apply to foreign citizens who are lawfully admitted for permanent residence in the United States (those who have "green cards").
For other advantages to having a Green Card see the list on the FAQ.
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(July 20, 1996)
We're pleased to receive the highest overall rating in the new Internet Guide: iGuide.
This new directory service provides ratings and descriptions of selected Websites.
Our FAQ was singled out for this recommendation:
Answers to some of the major questions confronting Canadian businesspersons and professionals planning to immigrate to the United States....professional undertaking, loaded with valuable information.
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(July 20, 1996)
I just sent two reams of updates to the publisher. It took me almost 150 hours to assemble the new materials!
These materials include:
The Handbook is published by Carswell - the leading law book publisher in Canada. Carswell's parent company just merged with West Publishing making it the world's largest publisher of legal materials.
You can order the Handbook on-line from the publisher.
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(July 20, 1996)
A new issue is coming soon. The current edition of Richard Brunton's renowned publication is already on our site, full-text.
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(July 20, 1996)
Reader Gary Dare reminds me of the new I-94 fee for TN border applications.
Dear Joe,
I renewed my TN for another year this past weekend, and there is a separate $6 charge now being levied for the I-94 card on the top of the usual $50 TN fee. Previously, it has always been $50 (the old TC used to be $35 renewals, according to an old soc.culture.canada FAQ version I found in my archives over the weekend). Please take advantage of this information, a small token of appreciation for your website!
Thanks Gary!
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(July 1, 1996)
Dale Schuurmans (dale@cs.toronto.edu) asks about post-doctorate research options. The questions touch on several TN-1 immigration issues: mathematics vs. computer science, teaching vs. research and general NAFTA strategy.
Here is the Usenet interchange:
I am a Canadian citizen with a BSc in Mathematics and Computer Science and MSc and PhD degrees in Computer Science. I have an offer to work as a Postdoctoral Fellow at an American university, and I'm wondering what category of recognized TN professional would be best to apply under: "computer systems analyst" or "university teacher"?
Either one would work. As if you didn't already have enough choices...don't forget the "mathematician" category! Check the complete list of TN categories at the TN-1 page.
The problem is that my job is really a research position and not a teaching position per se.
All the University professors I've known, have always done research as an integral part of their job. In fact, if you don't, you don't have your job for very long!
(Whether I teach or not is entirely up to me and not a necessary condition of my employment. The possibility that I could teach is open though.)
Don't let the tail wag the dog. Make immigration adapt to your preferences, not the other way around.
For this reason, I originally felt that the best course of action would be to apply as a "computer systems analyst", since my research activity involves the design, analysis and development of computer systems for performing certain tasks. However, I've recently had a worrying discussion with a US Immigration official at the Free Trade office in Buffalo: the person there expressed some suspicion that I would be working as a "systems analyst" when I have a PhD and would be working at a university. His response was something like: "Are you sure its not a teaching job?" and "Computer systems analysts work at companies don't they?".
They're probably doing you a favor. Either way, you qualify. The best strategy is to find the three job descriptions in the Labor Department's Dictionary of Occupational Titles. Which one is closest to your prospective job? Go with that one. Then track the DOT description in the paperwork you give to the INS at the border.
I think the TN has definite advantages over the other visas, and would like to pursue this option.
No question. See the Canada to U.S. Immigration FAQ for a list of advantages of TN status.
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(July 1, 1996)
The TN management consultant category may apply to computer consultants with Internet-based jobs. Here is a Usenet post from Lance Jones (sword@islandnet.com):
I have been given a wonderful job opportunity at a *very large* Internet content provider in San Francisco. They chose me because I have developed and marketed the largest Windows95 mailing list on the Internet (80,000 subscribers) -- the company has already purchased the rights to my "business", and now wish to retain my services as the author/producer/writer for the mailing list at their offices. I only completed 2 yrs of University, so my visa options appear limited. The "TN Management Consultant" comes close, but I don't have 5 yrs experience in Internet marketing, mainly because the Web in its current form and advertising on the Web is only 2 yrs old!!
Here is my response:
The TN management consultant category requires 5 years of experience relating to the U.S. work. This does not mean that you must have 5 years' experience in Internet marketing. Other computer experience and marketing experience can count. You need to carefully show how this experience relates to the U.S. work. See the TN-1 page for the requirements. Make sure your job description tracks the Dictionary of Occupational Titles descriptions for "management analyst" and "consultant".
The management consultant TN-1 permit is a bit tricky. If you plan to bring in an employee on that permit you may wish to first contact our office.
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(June 18, 1996)
Today I learned that the Detroit Michigan ports of entry are automatically denying TN entries if they find out that you have a Green Card application pending. In fact, that port may even cancel valid TN permits issued by other ports of entry!
This is an aberration. To my knowledge, only Detroit takes this position, which is not correct. (See the FAQ question on this "dual intent" issue.)
I've also learned that the central INS office will soon issue an advisory opinion concerning the effect of a Green Card application on TN status. I expect the opinion to state that a TN should not be automatically disqualified just because of a permanent petition filed.
In the meantime...avoid the Detroit border if you are in this position. Do not feel coerced into applying for an H-1. Do not delay your green card application. (In fact, a quick green card application can result in an employment document and travel permit resolving this issue.) Consult with an immigration lawyer to update your strategy.
If you have any first hand experience with these issues please let me know.
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(June 18, 1996)
I just answered the following Usenet post. Since it is difficult to find the articles concerning Canadians on Usenet, I reproduce it here for your convenience:
dwinn@risky.ecs.umass.edu (Daniel Winn) wrote:
Does anybody know if teaching at the high school level qualifies for a TN visa?
The TN is only for college, seminary or university teachers. See the complete list of TN professionals at http://www.grasmick.com/nafta.htm
If not, is it hard to get an H1 for this type of position?
The hardest part is usually getting a school to sponsor you. Public schools will often have rigid rules preventing hiring of Canadians. Smaller private schools may be more helpful. (They'll also pay less!) See the Can. to U.S. FAQ for information on negotiating immigration benefits with prospective employers: http://www.grasmick.com/canimfaq.htm
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(May 20, 1996)
I just received this e-mail. It points out that the Immigration Service does not want temporary Canadian visitors to intend to work or live permanently in the U.S.
Re: FAQ: Stopped at the CANADA/U.S.A. Border-What to Do?
I used to live in the US with a work authorization from the INS. The work authorization was based on amnesty case processing. Before I got a green card I decided to move permanently to Canada. I was once stopped at the border and refused entry into US based on my past work authorization. Is it going to cause problems for me in my future visits to US? Can I get some kind of a visa to allow entry into US more freely?
My response:
I'm assuming they stopped you, because they felt you want to live and/or work in the U.S. Right?
If you wish to continue to live and work in Canada, perhaps the B-1 page can give you an idea of what INS is looking for. For example, if you carry a current letter from your Canadian employer talking about the job you have in Canada, this would be helpful. To summarize, carry anything you can that shows your "links" to Canada.
Try the wallet test: if INS would look through your wallet, how many things have Canadians addresses on them, and how many have U.S. addresses?
If you wish to work in the U.S., start by looking at the interactive visa selector to find some quick options to study.
Remember, Canadian visitors must not intend to reside permanently when they enter the U.S. They cannot intend to work in the U.S. Make sure your employees have the requisite work permit before coming to take the job.
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(May 20, 1996)
I am pleased to announce a new Web page at our site: The Top Ten Pages-U.S. Immigration for Canadian Business.
That page lists the top ten Web pages on our site, based on popularity (the number of hits). The list may help you quickly find the information you need.
As you may know, our site is now quite large. Together with our new search engine, I hope this provides another way to conveniently find the the information you need.
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(May 20, 1996)
The bottom of all pages at this site now have a new navigational toolbar.
Here is a reproduction of this toolbar:
Search | Home & Contents | FAQ | News | Order Handbook | E-mail
(Why not try it now?)
I hope this speeds your research.
You may also notice other minor improvements, including a clean white page background and a tight home page organization.
Please give me your thoughts about these improvements.
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(May 6, 1996)
It's frustrating. You have the perfect Canadian candidate for that time-sensitive position. You can get a quick TN work permit. The candidate is ready to accept, but then asks "Can my spouse work in the U.S.?"
Current rules say "no"; TD's cannot work in the U.S. (In the meantime, see other options for spouses at the FAQ, Frequently Asked Questions.)
We hope to get some news on this topic, soon.
Few people know that the North American Free Trade Agreement provides for work authorization for TD (and L-2 and E-4) spouses. Here is an excerpt from the Agreement:
2. The Working Group shall meet at least once a year to consider:
. . .
(c) the waiving of labor certification tests or procedures of similar effect for spouses of business persons who have been granted temporary entry for more than one year under Sections B, C, or D of Annex 1603;
(You can search the NAFTA full-text from links on our home page.)
As American Immigration Lawyer's Association Liaison to the U.S. NAFTA Working Group delegation, I have forwarded this question to the representatives:
The NAFTA charges the Working Group with setting up measures to allow spouses of TN's to receive work authorization.
- What is the status of these efforts?
- When will spouses be allowed to work?
Register this page using the form at the top, for automatic notification of updates to this Newsletter. You'll read it here, first!
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(May 6, 1996)
We now have our own search engine. Try it now.
This feature was the improvement most requested by readers. I hope it makes your research more productive.
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(May 6, 1996)
I'm proud to announce a new Web page at our site: U.S. Jobs for Canadians.
This is a joint Web page of our office, and Exek Recruiters Ltd. It fills a gap in the extensive Internet employment world: a list of U.S. positions open to Canadian applicants.
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(April 22, 1996)
The Social Security administration has tightened its policy on non-working Social Security numbers. You must now show that a social security number is required by law, before the Social Security Administration will give you a Social Security Card.
The old policy was more liberal. Canadians could get non-working card, if necessary for identification purposes. These purposes included opening a U.S. bank account.
It will now be very difficult to get a non-working number.
This policy is only for non-working numbers. If you have an employee with a U.S. work permit, you can easily get a working number. When we escort your employee across the border for a border work permit, we will proceed to the Social Security Office to apply for card. See the Web page about Social Security cards for more information.
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(April 22, 1996)
Our site is discussed on the Worldclass "Likes and Dislikes" page---fortunately in the "Likes" category!
According to Worldclass:
We have reviewed approximately 4000 Web sites, and currently include 500 top business sites from 60 countries. We repeatedly encountered site features that really clicked well, and others that we feel just didn't work. We hope that you can learn from our Likes by viewing examples of effective features that your Web designer can put into your own corporate Web site.
. . .
LIKES. Service firms proving their expertise instead of simply proclaiming it. Articles written by firm partners, industry tips, even hot links to good sites show us that some service firms know what they are talking about. Look at all the U.S.-Canada law tips you can read online from this law firm.
Many thanks to our readers, whose helpful comments make our content useful.
Return to the
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(April 22, 1996)
Here are our top ten Web pages with the most reader interest. You may find this a quick way to find the information you need---other readers do.
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(March 7, 1996)
Those in the know heaved a sigh of relief today. For now, the draconian employment-related immigration provisions are out of the Simpson Bill.
According to today's Wall Street Journal:
In a major victory for business leaders, Sen. Alan Simpson has decided to strike employment-related immigration provisions from his sweeping immigration legislation.
Sen. Simpson said he will inform colleagues at today's Senate Judiciary Committee meeting that he is dropping portions of the bill that would, among other things, cut to 90,000 from 140,000 the immigration slots set aside for foreigners with jobs in the U.S. Another provision would have required employers to pay a fee for certain foreigners hired to a fund for training American workers.
The American Immigration Lawyers Association still warns:
While this unilateral move by Simpson is a tremendous step forward, we should not be lulled into a sense of complacency or conclude that the debate on employment-based immigration is over. For instance, Senator Kennedy immediately expressed his dismay and his intention to offer several amendments...that would "protect American workers" from companies who "fire qualified U.S. workers and hire foreigners at one-half their wages to replace them."
Register this Newsletter with URL-minder to get new legislative developments that affect Canada-U.S. business immigration.
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(February 17, 1996)
The U.S. Trade Center just announced the unveiling of its new Web site. Canadian exporters can now access information at http://www.ustradecenter.com.
The U.S. Trade Center is on of the best international trade organizations I've seen. (We already host a joint Web page with that organization containing a directory of Canada/U.S experts...one of the most popular pages on our site.)
The U.S. Trade Center's new site contains huge amounts of quality information. Some pages contain detailed reports on Canada/U.S. trade issues. Here is a selection, hypertexted for your convenience:
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(February 17, 1996)
We are pleased to host a new Web page at our site. This page is a joint effort of our office and the Law Office of Henry J. Chang.
The new page tells how to get the Treaty Visas (E-1 and E-2) from the U.S. Consulate Toronto. (The Toronto Consulate now handles these visas for all Canadians.) This information complements and supplements our main E-2 Visa page.
We invite you to review the new information now.
We thank Mr. Chang for his valuable contribution to our site.
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(February 13, 1996)
Here is exclusive information for readers of this Newsletter.
Our office requested a formal advisory opinion from the INS Central Office. We asked the INS if Canadians working for their own companies, can get TN status.
The INS said "yes"...if the company is performing services for another U.S. entity. This means that TN's must still have a U.S. "sponsor". This sponsor can be a U.S. client, customer or employer. The TN applicant (or his or her company) can work for the U.S. entity by contract. It's not necessary to be in a formal employer-employee relationship with the U.S. entity.
This is progress. Nevertheless, it is still not clear what would happen if a TN applicant sets up his or her own U.S. company---and uses it as the "U.S. entity". Would this constitute prohibited "self-employment" under NAFTA?
Stay tuned. Register this page with URL-minder and receive automatic e-mail notification when we hear more.
Here is the full text of the advisory opinion. We are grateful to the U.S. Department of Justice INS, and in particular, Yvonne M. LaFleur, Chief of the Business & Trade Branch Adjudications.
Readers of this Web site are the first to have public access to this information:
U.S. Department of Justice
Immigration and Naturalization Service
HQ 1815-C
425 I Street NW
Washington, DC 20536
FEB -5 1996Mr. Joseph C. Grasmick
Cyclorama Building
Suite 300
Buffalo, New York 14202-1725Dear Mr. Grasmick:
This is in response to your letter of November 9, 1995, concerning prohibited self-employment for a Canadian TN management consultant. I apologize for the delay in responding to you and hope that you were not unduly inconvenienced as a result.
For the purpose of your question, you state that a Canadian company provides services exclusively to an existing U.S. company. The prospective TN nonimmigrant is an employee of the Canadian company and also has an ownership share in that company. You ask whether the Canadian citizen would be permitted to perform services as a TN nonimmigrant for the U.S. company if he owns, respectively, less than 50 per cent, more than 50 per cent, or 100 percent of the Canadian company.
The nature of the prospective TN nonimmigrant's Canadian employer does not matter as long as the Canadian citizen is seeking entry to provide prearranged services for a U.S. entity. In order to obtain "TN" classification, a business person, including one who is self-employed in Canada, must be seeking entry to render pre-arranged professional services in the receiving NAFTA party. To constitute pre-arranged professional services, there must exist, prior to the time at which classification as a NAFTA Professional is sought, a formal arrangement to render professional service to an individual or an enterprise in the receiving NAFTA Party. The formal arrangement may be through an employee-employer relationship, or through a signed contract between the business person or the business person's employer and an individual or an enterprise in the receiving NAFTA Party.
Therefore, in the example that you have cited in your letter, the Canadian citizen would be eligible to apply for admission as a TN nonimmigrant no matter what his or her ownership share is in the Canadian company. However, his or her business activities in the United States must not include establishment of a business or practice or any other type of activity in which he or she will be self-employed.
I hope that this is responsive to your concerns.
Sincerely,
Yvonne M. LaFleur
Chief, Business & Trade Branch
Adjudications
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(February 13, 1996)
Here's more good news for independent contractors:
Canadians who may not be in a T4 or W2 (employee) relationship with their sponsoring company can still receive L-1 status.
In particular, it is no longer necessary to show a T4 form at the border, when applying for an L-1.
The INS just released an opinion letter allowing independent contractors to qualify for L-1 status. This can result in substantial tax savings to many of you.
Independent contractor L-1 applications are still tricky. INS sets out requirements---which could contradict the advice you receive from your accountant. Furthermore, we expect continuing resistance "at the front"---from the Free Trade Border officers who actually administer the rules.
For these reasons, before preparing your application, check the data and contacts at the following resources:
Here are excerpts of the request for the opinion, and from the opinion itself. Many thanks to Serotte, Reich, Seipp and Kenmore for initiating this action:
To: INS Central Office, Mr. John W. Brown, Acting Chief NIV Branch
From: William Z. Reich
. . .
Dear Mr. Brown:
We are writing to seek an opinion regarding the definition of "employed" in the context of an L-1 application.
. . .
This employee had no other employment and devoted his full time and attention to managing those aspects of the business enterprise of the corporation for which he is employed. He received complete direction and assignments from the executives of the corporation and he was at all times subject to his employers' control with respect to all his work and not only as to the results thereof. He had full use of support and administrative services necessary to complete his work assignments and he was paid for his compensation as a flat sum for Canadian tax reasons. It was intended at all times that he be an employee and was treated as such for all purposes by his employer.
. . .
We would appreciate your opinion as to whether, under the facts as described above, the individual is to be considered an employee. We feel that under these circumstances, notwithstanding the lack of a T-4, a letter confirming full-time, permanent employment is sufficient to establish an employer/employee relationship.
. . .
U.S. Department of Justice
Immigration and Naturalization Service
425 I Street NW
Washington, DC 20536Mr. William Z. Reich
300 Delaware Avenue
Buffalo, New York 14202Dear Mr. Reich:
This refers to your letter of August 25, in which you describe a situation wherein a Canadian citizen applied for admission under the North American Free Trade Agreement as an intracompany transferee (nonimmigrant classification L-1) and was refused admission because he could not establish that he had been employed by a qualifying organization for the requisite one year abroad. You seek an opinion regarding the definition of "employed" in the context of an L-1 application.
. . .
A general definition of employment elsewhere in the regulations specifies compensation as one distinct elements, but the Service generally equates the rendering of service with employment for this qualifying L-1 period. See Matter of Tessel, Inc., 17 I&N Dec. 631 (1981 Acting Assoc. Comm.), which held that a non-salaried chairman can qualify as an L-1 nonimmigrant, and Matter of Pozzoli, 14 I&N Dec. 569 (1974 Reg. Comm.), which held that the power of control over the employee's activity, rather than salary, is the essential element in the employment relationship. Therefore, it is our opinion that under the conditions as described in your letter, the alien in question may apply for admission as an intracompany transferee if all of the criteria for L-1 classification are met, including having been "employed" by the foreign organization continuously for at least one year in the three years preceding application for admission to the United States.
. . .
Sincerely,
Yvonne M. LaFleur
Chief, Nonimmigrant Branch
Adjudications
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(February 12, 1996)
Senator Simpson has introduced a bill, S. 1394, that will have far-reaching effects on Canadian business immigration. (See various articles below, tracking the progress of this radical proposal.) According to the American Immigration Lawyers Association (AILA) the bill is on a fast track. It will be considered by the full Senate Judiciary Committee in late February. It could then go to the full Senate by early spring and could soon become law.
Here is today's update from AILA:
Senate Judiciary Committee "markup" of the Simpson bill will begin in late February (either the 22nd or 29th). We are within reach of securing the votes necessary to strike the legal immigration provisions [restrictions on business immigration] from the bill. [Other provisions of the bill relate to curbing illegal immigration.] Senator Abraham is sponsoring the "strike" amendment, and DeWine and Specter have pledged their support, along with most of the democrats on the committee. We have yet to obtain commitments from Hatch, Brown, Thompson, Kohl, and Leahy, though all are open/sympathetic. An increased effort in the coming two weeks can make the difference!
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(February 8, 1996)
Carefully review the immigration status of your employees who need to travel to the U.S. from Ontario and Quebec.
The INS is now doubling its deportation efforts along the Canada/New York border.
According to today's Buffalo News:
The U.S. Immigration and Naturalization Service is stepping up efforts to track down illegal aliens...The Buffalo district director of the INS got word this week of plans for a staffing increase that will allow the district to more than double its deportations..."We deport about 1,000 illegal aliens from this district each year, and with the new staff additions, we should be deporting more than 2,000 a year," said the director, John J. Ingham.
"It's part of a national initiative, supported by both the president and Congress. The intention is to identify illegal aliens, remove these people and open up more jobs for American citizens."
He added that the Buffalo area has more illegal aliens than most areas of the country because the city sits on one of the world's busiest international border crossings.
How does this news affect our respectable Internet readers?
Business travelers will be caught in the Web...especially in the grey area of business visitor (B-1) travel. The initiative does not single out business travelers,. Nevertheless, we expect more INS follow up of business travelers...follow up to make sure your employee is really coming to the U.S. "on holiday in Florida" or "just attending a trade show".
"INS follow up" means telephone calls or visits to your U.S. office or to your customer's office. Rarely it includes following the employee's vehicle. (We've seen this happen already.)
The Buffalo INS district has jurisdiction over the Upstate New York, the entire NY/Canada land border, and INS preclearance at Toronto and Montreal airports.
The result?
It is no longer a mere inconvenience, when an employee is turned away. Now, INS has the resources to create a snowballing problem:
The solution?
Survey all your employees who may be going to the U.S. on company business:
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(January 31, 1996)
"Trade traffic through Buffalo and upstate New York border crossings continues to grow faster than at most other U.S. Customs districts."
This is according to the latest issue of the WNY edition of Business First.
There is a corresponding growth in the number of area experts qualified to service this trade. Businesses throughout the U.S. and Canada are increasingly using the services of WNY and Ontario professionals. My Rolodex® and the U.S. Trade Center Mega-Directory are the major listings of these experts.
The Buffalo Customs district is the third fastest growing customs district in the U.S. This is especially noteworthy since the statistics compare all Customs districts in the U.S....not just districts at the Canada/U.S. border!
According to Business First:
In the first three quarters of 1995, trade through the Buffalo district outpaced all but two districts, [Duluth, Minn. and Norfolk, Va./Mobile, Ala/Charleston, SC] and grew 15 percent over the first nine months of 1994.
As before, auto industry trade through Canada fuels the Customs district's growth.
The clear majority of trade came or went through Canada, accounting for $39.37 billion in goods.
Consider using Buffalo's Peace Bridge for your L-1 or TN NAFTA entry. You will find that the increase in volume, also means an increase in government expertise. Results are more predictable. Coverage by NAFTA-trained INS inspectors is more complete.
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(January 31, 1996)
People born in Canada cannot use the Visa Lottery this year. (See VISA LOTTERY STILL ALIVE AND COMING SOON! January 23, 1996)
Some Canadian citizens may still qualify for the Lottery. You can qualify if you are a "native" of a qualifying country. A native is someone:
The complete list is of marginal interest to most readers and we do not include it here. It is available elsewhere on the Internet.
Here are examples of non-eligible countries:
Here are examples of eligible countries:
Canadian born readers interested in immigrating to the U.S. should review the Interactive Visa Selector for other options.
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(January 23, 1996)
The McKinley/Magellan rating service has give our site a three star rating. As per McKinley:
This rating is a special mark of achievement in Magellan, McKinley's comprehensive Internet directory of over 1.5 million sites and 40,000 reviews...Your site has been recognized as part of our rigorous review process, in which we consider three primary factors: depth of content, ease of exploration, and Net appeal.
McKinley also gave our FAQ-Frequently Asked Questions a three star rating of its own.
Many thanks to scores of readers who sent us praise, criticism and help. You helped us earn this award.
Now help us move into the four star category! How can the site be improved? Send your comments.
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(January 19, 1996)
In spite of earlier doubts, Congress has not yet abolished the visa lottery.
Our internal sources confirm that the State Department plans to release an announcement on January 29, 1996. The Department plans to receive the applications only between February 12, 1996 and March 12, 1996.
We do not yet know if Canadians will be eligible this time. The time window for applications is small and you'll need to act fast. Register this page with URL-minder to make sure you get the news on time.
The visa lottery is an annual program to redistribute immigration. The goal is to stimulate immigration from countries with fewer immigrants to the U.S. Requirements are dramatically relaxed for those randomly chosen.
The lottery should be only a supplement to your existing immigration strategy. Chances of success are low. In the past, no greater than 4% of Canadian applicants won the lottery. We've seen many people postpone other applications while "waiting for the lottery". Most are ultimately disappointed.
For this reason our office handles lottery applications only for clients actively pursuing other permits. We can refer you to other law firms that will handle only the lottery.
The lottery can be a good ancillary strategy. Contact us to help establish the right immigration program for you. You can also use the interactive visa selector to identify some of your options.
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(January 19, 1996)
It is now easier for hospitals to hire medical doctors.
The INS gives quick Green Cards to doctors filling positions in "medically underserved areas." Medically underserved areas are typically rural, inner city or shortage specialties.
These green cards fit within the streamlined National Interest procedures. See the FAQ-Frequently Asked Questions for details.
This provides a long-term tool for HR managers in the health professions. For short-term permits consider the TN.
Here are excerpts from an INS opinion letter on the subject. (Courtesy of the American Immigration Lawyers Association and Michael Maggio---a Washington DC immigration lawyer:)
Michael Maggio, Esq.
Maggio & Katter, P.C.
Eleven Dupont Circle, N.W.
Suite 775
Washington, DC 20036Dear Mr. Maggio:
I am in receipt of your letter, dated November 13, concerning Vermont Service Center's adjudication of national interest waivers on behalf of physicians working in medically underserved areas of the United States. As you are aware, the Office of Examinations has recently decided that, until further notice, in the interest of consistency, the Service Centers should continue their past practice of favorably adjudicating most national interest waivers for physicians who will be practicing in medically underserved areas of the United States.
...
Sincerely,
Michael W. Straus
Acting Chief,
Immigrant Branch
Adjudications
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(January 11, 1996)
International tax planning can produce substantial tax savings. The structure and timing of your U.S. immigration permit can be decisive.
Here are resources available only on our Web site:
The authors of these pages are two leading Canada/U.S.A. tax experts.
It's now time for you or your employees to consult with a tax expert. This expert should be versed in Canada and U.S. tax law. Consult:
Advise them that you were sent by Joe Grasmick.
Happy April 15!
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(January 4, 1996)
Many of you are watching this bill carefully---especially those racing to get Green Cards via National Interest Waivers. (If you need a Green Card under this category e-mail us to start ASAP. Review the FAQ for more information.)
There's another group that should be worried: anyone using L-1 status or corporate transferee green cards. The Bill as is would decimate these categories. Most international businesses would find it nearly impossible to send managers to the U.S.
Here's the latest predictions from the American Immigration Lawyers Association:
Senator Simpson's combined enforcement and legal immigration bill, S. 269/1394...has been held over on the Senate Judiciary Committee calendar and could be scheduled for formal markup at any time. Sources in the Senate tell us that the earliest possible dates for markup seem to be the week of January 22nd, although a date late in February may be more likely.
The unresolved budget stalemate means that no one is sure about when Congress will recess and when it will be in session for votes and markups. At this moment, Congress is in session and could schedule votes or markups at any time.
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© 1996 Law Office of Joseph C. Grasmick, Business Immigration
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