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Grasmick's U.S. Business Immigration News for Canadians-1997 Archives, July-Sept.

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More Paperwork for Canadians?

(September 25, 1997)

According to the Globe and Mail a new law would require Canadians to file formal entry and exit documents for travel to the United States. All Canadians, including Green Carded residents and tourists would have to register at the border and log departures as early as next September. By 1999, all Canadians travelling to the United States would have to apply for "smart cards" encoded with hand-print and passport information.

This will not happen. There is tremendous opposition to this little known provision in the law. It would bring border towns to their knees.

Here is the Globe and Mail article:

http://www.theglobeandmail.com/docs/news/19970917/GlobeFront/UVISAN.html

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Law Office News

(September 25, 1997)

New List of Representative Clients.

We are proud to have contributed to the success of Canadian and American businesses. Fine websites of past and present clients are linked on our representative client list.

Attention past and present clients: please advise if you have a Website. We will include it on this list as a courtesy.

New Toronto Fax and Voice Mail.

We now have a new Toronto fax and voice mail service: 416.352.5115. This service immediately sends your faxes and voice mail messages to my e-mail inbox via the Jfax service. Data is immediately accessible and integrated into our paperless office system.

This service supplements our traditional telephone and fax numbers:

Meaghen (Hoang) Ganey

Patrick and Meaghen Ganey have been blessed by the birth of a daughter, Madeline Anh Ganey.

Many of you will remember Meaghen (then, Meaghen Hoang). Meaghen was a lawyer in our office who helped many of you achieve L-1, TN and Green Card status. Meaghen relocated to Minneapolis after her marriage.

Congratulations Meaghen!

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Treasure Trove for Dual Citizens

(September 25, 1997)

American Citizens Abroad (ACA) is a non-profit association dedicated to serving and defending the interests of US citizens world-wide. ACA's biweekly News Update network offers news and views relevant to Americans living abroad.

Here are sample topics:

• The new TAX LAW signed by President Clinton. . .
• Exchange visitor program to be reorganized. . .
• Be careful before you sign that oath!. . ....
• Documented cases involving US citizens who have lost and sometimes regained their US passport after obtaining another nationality. . .
• Need medical help during your travels?. . .
• New and interesting sites for expats. . .

Thousands of Canadians are also U.S. Citizens and may profit from this information. Remember. . .dual citizens are also "American expatriates"! Also review U.S. Citizenship For Canadians at this site.

American Citizens Abroad
P.O. Box 321
1211 Geneva 12, Switzerland
Tel/Fax: (41-22) 347 6847
E-mail: acage@aca.ch

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New Lottery---Most Canadians Left Out

(September 25, 1997)

The 1998 visa lottery will only help a few readers This is because most 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: Even if you were born in an ineligible country there are two exceptions:

Exception #1: You can use the country of your spouse's birth, or

Exception #2: You can use the country of one of your parent's birth if at the time of your birth: 1) neither parent was born in the ineligible country, and 2) neither parent resided in the ineligible country.

Unless you fall under one of these exceptions you do not qualify if you were born in:

• Canada
• China (mainland and Taiwan, except Hong Kong S.A.R.)
• Colombia
• Dominican Republic
• El Salvador
• India
• Jamaica
• Mexico
• Philippines
• Poland
• South Korea
• UK (except Northern Ireland) and dependent territories
• Vietnam

The application period will begin on October 24, 1997. It will end on November 24, 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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Health Care Worker Border Confusion

(September 25, 1997)

The Commission of Graduates of Foreign Nursing Schools (CGFNS) informed INS that it intends to go into business and issue certificates to Health Care Workers. Some border ports displayed a brochure offering this service for a fee. Confusion resulted.

"Not so fast" says the INS:

Subject: IIRAIRA Section 343: Reaffirmation of Immigration and Naturalization (INS) Policy
Date: August 27, 1997
To: All Regional Directors All District Directors (Including Foreign) All Officers in Charge (Including Foreign) All Port Directors All Service Center Directors All Training Academies (Glynco and Artesia) All Regional Counsels All Asylum Directors
From: Office of Programs (HQPGM)

The purpose of this memorandum is to reaffirm INS policy with respect to section 343 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) which amends section 212(a)(5)(C) of the Immigration and Nationality Act.

The Commission of Graduates of Foreign Nursing Schools (CGFNS) has informed INS of its intention to begin issuing certifications pursuant to section 343 of IIRAIRA on August 25, 1997. The INS will not accept any certifications issued by CGFNS or any equivalent independent credentialing organization prior to the promulgation of INS regulations implementing section 343 of IIRAIRA. Additional INS instructions will be provided at such time as the appropriate certification procedures have been put in place.

Accordingly, instructions contained in INS memorandum 96ACT#041 (HQ 70/23.-P, HQ 70/21.1.14-P and HQ 50/5.12 dated June 6, 1997) remain in effect. See also 96 ACT#014 dated January 28, 1997 for background about section 343 of IIRAIRA.

For further information, please contact Adjudications Officer John W. Brown at 202/514-3240

Paul W. Virtue
Acting Executive Associate Commissioner

See other articles in this Newsletter for more information on new requirements for health care professionals.

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Economical Legal Fee Alternative

(August 1, 1997)

Many of you have asked me if I could review your paperwork before your present it to the INS.

Our fee structure now includes such an option. Although we recommend full representation, this should provide another option for employers and employees.

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INS Running Out of H-1's

(August 1, 1997)

This year produced an unprecedented demand for H-1B permits. INS predicts they will run out of H-1 permits for their fiscal year. If you do not have your H-1 in hand:

• Do not plan on receiving it. INS may return your application or hold it in abeyance.
• Consider applying for a TN instead.

If you are Canadian chances are the TN is better for you anyway.

Here is information courtesy of the American Immigration Lawyers Association.

AILA President Margaret H. McCormick and Immediate Past President Denyse Sabagh met with INS on Monday to discuss the H-1B cap. INS confirmed that the numbers of visa approvals as of June 30, 1997 was indeed 53,307, and that this number would stand. INS estimates that the cap will be reached between August 15 and August 31.

Ask me if you would like to switch to a TN strategy.

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Who's Using the "Controversial" H-1?

(August 1, 1997)

Who is using all of the H-1 numbers?

The Buffalo News has just published two articles spanning two pages about the "controversial federal program"---the H-1B. The article provides useful data I have never seen elsewhere.

The Controversy?

..unlike permanent work visas, it [the H-1B] does not require employers to look for U.S. residents to fill the opening.

Veteran immigration lawyer Gerald Seipp (and contributor to this Web Site) is quoted to refute this position: "I think most people realize that our companies need the best and the brightest."

Using computer analyses of U.S. Labor Dept. records, the News assembled these interesting statistics:

Although the data is only for Western New York, it may also represent proportional breakdowns in other areas of the country.

How does this affect our readers?

• Most Canadians probably use the easier TN and do not substantially contribute to these statistics.
• The TN is not particularly controversial in New York. Inherent in NAFTA TN's is reciprocity: the U.S. gives up labor market protections in exchange for access to the Canadian labor market. The H-1 contains no element of reciprocity.
• The H-1 requires paperwork, delay and (as this article shows) public scrutiny. If I were an employer I would prefer hiring a TN Canadian!
• Readers will recognize a corresponding TN category for all of the professions in the second table.

If you are an employer contact me to learn about the TN alternative. If you are seeking employment, put me in touch with your employer and use this Website to educate the hiring manager.

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New Web Page: Client Satisfaction Survey Results

(August 1, 1997)

Are you thinking of using a lawyer to help with your immigration matter?

A new page on this site contains client feedback to help you decide.

The information includes:

• Statistical summaries of questionnaires gathered over the years
• Actual quotes from clients

The data relates to areas of cost/benefit, speed, communication and responsiveness. Clients consistently deem these qualities most important in legal representation.

Many thanks to those who took the time to response to our questionnaire.

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I-9 Employer Sanction Brochure Available

(August 1, 1997)

I will be happy to send employers a copy of Employer Sanctions and Employment Documentation, Preparation of I-9 form. This is an American Immigration Lawyers Association publication to help employers avoid substantial (US$100 to $10,000) civil penalties.

Employers are required to maintain I-9 forms showing all employees are authorized to work in the U.S. There are special twists with Canadian employees.

Here are some dangerous assumptions:

• "He's a temporary visitor on B-1 status. I have no liability."
• "She says she's a contractor, not an employee. I don't have to worry. She's the one that would get in trouble."
• "He's a volunteer."
• "No problem. They're paid from Canada."
• "As long as they say they are U.S. citizens I don't have to worry."

I'll also be happy to perform an I-9 audit for your company.

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Sarah Debusscher

Meet Sarah Debusscher

(August 1, 1997)

We are pleased to have Sarah Debusscher in our office this summer. Sarah is an intern from the Antwerp Business School in Belgium.

Sarah is a licentiate in economics. Her specialty is international relations, finance and IT management.

While in our office she will be comparing business immigration in NAFTA with that of the EEC. she will also be observing our "paperless" Internet-based law office.

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Canadian Nurses Valuable After H-1 Crackdown

(July 8, 1997)

The INS Appeals Board (the AAU) has declared that nurses do not qualify for H-1 status. Nurses do qualify for TN status. Since only Canadians qualify for TN status I expect an increased demand for Canadian nurses.

Here is selected text from the AAU case:

The petitioner is a sub-acute care facility which seeks to employ the beneficiary as a registered nurse supervisor for a period of three years. The director determined the petitioner had not established that the proffered position is a specialty occupation.
. . .
The beneficiary holds a Bachelor of Science degree in Nursing from Saint Louis University in the Philippines and is licensed in the State of California.
. . .
Pursuant to 8 C.F.R. 214.2(h)(4)(iii)(A), [see our link to the INS regulations --Ed.] to qualify as a specialty occupation, the position must meet one of the following criteria:

1. A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;
2. The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree;
3. The employer normally requires a degree or its equivalent for the position; or
4. The nature of the specific duties is so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.

. . .
The Department of Labor's Occupational Outlook Handbook (Handbook), 1996-1997 edition, [see our link to the Handbook --Ed.] at pages 174-175 finds no requirement of a baccalaureate or higher degree in a specialized area for employment as a registered nurse. Some registered nurses hold baccalaureate degrees while others hold diplomas or associate (two-year) degrees. Additionally, the Handbook indicates that attempts to raise the educational requirements for a registered nursing license to a baccalaureate degree in nursing have not been successful. In view of the foregoing, it is concluded that the petitioner has not demonstrated that the proffered position is a specialty occupation within the meaning of regulations.

Health care institutions may now wish to "revisit" job applications on file from Canadians. Here is case citation information for your legal department: "In re X, AAU Decision Dated November 21, 1996, 17 Immig. Rotr. B2-1, WAC 96 103 51481, California Service Center, AAU Designation U".

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Do We Need a Lawyer?

(July 8, 1997)

"Do We Need a Lawyer" is one of the most frequent questions I hear. Readers wonder whether their own HR or legal departments can handle immigration applications.

Three sources can help you decide:

• The Role of Immigration Lawyers, by the American Immigration Lawyers Association.
• Henry Chang's perspective.
• My views, at our FAQ Question 18. Do I need a lawyer?

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Hospitals Can Get H-1 for Respiratory Therapists

(July 8, 1997)

Our office just received an H-1 approval for a hospital client. The successful beneficiary was a Respiratory Therapist. We pursued this application together with co-counsel from another law firm.

As many of you know, my slogan is "If you're Canadian...and on an H-1...you're probably on the wrong visa". Nevertheless, this is an instance where INS has not clearly recognized RT's as "TN medical lab technologists".

Incidently, it is my opinion that RT's should qualify for TN status. There are certain laboratory blood tests, for example, that RT's are trained to do.

Hospitals currently face shortages when searching for qualified health professionals. Recruiting in both Canada and the U.S. can increase your chance of success. (The FAQ question: 14. Why should we go through the hassle of hiring a Canadian for the job? shows how.) Filling an otherwise vacant position contributes to the economical delivery of health services in the U.S.

In this case the Hospital would not have filled the vacancy had the application been denied.

For more information about RT's and other health care professionals, search the threads in our forum. This Newsletter also contains information about Health Professions. Send me an e-mail if you have a qualified Canadian candidate for your hard to fill job vacancy. (Attach the applicant's resume if you'd like.)

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Employers: Ask Me for INS Factbook

(July 8, 1997)

I will be happy to send employers a copy of the 1997 INS Factbook. I will do this as a service of our office. (A thank you to the INS Public Affairs office for sending me multiple copies!)

The Factbook condenses quantities of useful data into a pocket-size publication. It is a nice, compact resource.

Topics include:

• Map with INS Region and District Boundaries
• Immigrant and Nonimmigrant Statistics
• INS Organizational Chart
• Names, Addresses and Telephone for Key INS Contacts
• Glossary of Terms---(A Mini-course in U.S. Immigration Law)

The INS could only send me a small supply. I must therefore reserve them for employers who can leverage the information. Send me an e-mail with your name, title, company and address. You can also fax or mail your request to my address on the bottom of this page. I will give them out until I have no more!

Individuals can order single copies of this publication from:

INS
Headquarters Office of Public Affairs
Tel: (202) 514-2648

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Are Employers Afraid of "Temporary" TN's?---Opinion Letter You Can Use

(July 8, 1997)

Should employers reject Canadian job applicants because "they can only work for a short time on TN status?"

Here is an opinion letter on the topic. I produced this "plain English" letter for prospective employers of Canadian TN-1 professionals. Managers can show this letter to their HR department. Job applicants can show it to prospective employers:

LAW OFFICE OF JOSEPH C. GRASMICK
Business Immigration
CYCLORAMA BUILDING
369 FRANKLIN STREET STE. 300
BUFFALO, NY 14202-1725 USA
TEL: 716.842.3100
FAX: 716.842.3105
jgrasmick@grasmick.com

Writer's direct telephone: 716.842.3104

VIA FACSIMILE

Dear Michael:

Thank you for your telephone call.

You mentioned that some prospective employers of Canadian computer specialists question whether they can use the NAFTA TN-1 permit for long term U.S. employment assignments.

Please advise your clients there should not be a problem in this regard.

It is true that the TN---as well as all temporary immigration permits---require the person to have temporary intent.

Nevertheless, this temporary intent requirement still allows the person to remain in the U.S. for years. Put another way, "temporary" in the immigration rules is not the same as "temporary employment" in the business world.

Here are some facts for your use:

• There is no top cap on the total number of years a person can remain in the U.S. on TN-1 status. There are TN-1 applicants who have been on NAFTA status since the commencement of the original CFTA.

• When we draft TN applications we usually state that the person will be needed for several years. All such applications have been approved, in one year increments.

• If there is a good chance a person will be employed for longer than 2-3 years we suggest converting the TN-1 to a Green Card (permanent residency). Employers would probably want to do this anyway.

I hope this answers your questions.

I invite your employer clients to call my office with any questions. They may also refer to our Website Canada to U.S. Business Immigration (www.grasmick.com).

Best regards,

LAW OFFICE OF JOSEPH C. GRASMICK

Joseph C. Grasmick

JCG:cg

For other employment-related questions try the new Employment/Jobs topic at our forum. For questions about converting a TN to a Green Card see the FAQ-Frequently Asked Questions Page.

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New INS Memo re: Management Consultants?

(July 1, 1997)

Here is a message I just received from another lawyer:

Mr. Grasmick,

I just recently had our firm purchase a copy of your Canada-U.S. Business Immigration Handbook, which has been a very useful tool for my practice.

I spoke this morning to an official with INS at Pearson International Airport in Toronto, who informed me that the INS offices had just been sent a computerized "directive" with respect to how to review and process applications for a TN-1 in the Management Consultant Category. It sounds as though this "directive" tightens up the requirements for the application quite a bit.

I have not yet see this memo or even verified its existence. Keep watching this page and our forum for news.

Until then, consider this a rumor. Nevertheless if you have a forthcoming TN management consultant application, advise your lawyer.

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Try the Tax and Jobs Forums

(July 1, 1997)

I'm pleased to announce two new topics on our Canada to U.S. Immigration Forum.

Tax and Financial-For discussions about tax and other financial matters concerning Canadian professionals in the U.S. Includes income and estate taxation, social security, health insurance, retirement accounts and other matters affecting your pocketbook.

Employment/Jobs-The discussion topic is about U.S. employment issues for Canadians. We welcome Canadian managers sending employees to the U.S. We also welcome U.S. managers hiring Canadians. This topic is also for Canadians working in the U.S.

Two of our forum regulars---John Chettleburgh and Mark Serbinski---have agreed to administer these topics. Both John and Mark are top North American experts in these areas. We are fortunate they are able to share their time with us. I urge readers to use the topics, and to visit Mark and John's Websites for further information.

These topics should be especially useful for managers who hire Canadians. These issues can make or break a successful hire.

The growing body of archived messages is now accessible to our search engine. With the "search" button you can tap an extensive body of immigration knowledge. Messages contain not only readers concerns, but the contributions of top North American experts. (Unlike our contributions on Usenet conferences, we can save and use older messages.)

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Attention Lawyers: E-mail for Visa Office

(July 1, 1997)

The State Department released this announcement which we reproduce here. (Courtesy of the American Immigration Lawyers Association):

This week, the Visa Office created a new interactive e-mail account to handle legal inquiries on visa issues. The address is legalnet@salwpoa.us-state.gov. Genuine legal questions will be answered via e-mail by our advisory opinions branch. (VO/L/A): Other case-specific inquiries will be responded to by our public inquiries branch. We're hoping that this will cut down on the number of phone calls to VO/L/A. Please spread the word and encourage your members to send us an e-mail instead of picking up the phone. Since this is a pilot project we welcome your comments about the usefulness of this service. We've also launched an interactive e-mail account which the public can access via our website. E-mail that come in to our public inquiries office via the website will be handled like regular mail, with responses going out via e-mail.

This information may be useful when preparing E-2 Visa Applications for your clients. (Incidently, I welcome inquiries from lawyers who may need specialized assistance in matters concerning Canadian clients.)

As an immigration lawyer and taxpayer I applaud this Visa Office initiative. May it set an example for other government agencies.

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Cross-border Cultural Treasure

(July 1, 1997)

I was pleased to attend the opening of Taming of The Shrew at the Stratford Shakespeare festival, Stratford Ontario. I attended with Mr. Leo Leduc, Senior Trade Commissioner and Consul of the Canadian Consulate in Buffalo.

The Stratford Festival is one of the richest cultural activities in Canada. It is accessible to a large cross-border audience. I highly recommend these productions (and specifically this production) to our New York and Ontario readers.

Pictured here are Mr. Leduc and myself at Stratford, with selected members of our families.

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Hospitals: Some Relief

(July 1, 1997)

I recently received an e-mail with the subject line "What the Heck is Going on With TN Health Care Workers???"

"What the heck" indeed!

The new immigration law requires that certain foreign (not just Canadian) health care workers take a licensing examination before getting a work permit. There are several articles about this in our archived news and on the forum.

I am receiving more calls from hospital HR managers. These managers find that their Canadian employees are facing difficulties when renewing their TN or H-1 permits. Some wonder whether they should proceed with or delay Green Card applications. (They should proceed.)

The INS itself isn't immune to the confusion. Some readers report that they've been asked for medical examinations at the border!

The INS office attempts to clarify policy until detailed regulations are promulgated. Here's the latest official memo courtesy of the American Immigration Lawyers Association:

Subject: Instructions on the Processing of Certain Foreign Health Care Workers
IIRAIRA Section 343
To All District Directors
From: Office of Examinations (HQEXAM)

The purpose of this memorandum is to provide you with additional information with respect to the processing of foreign health care workers affected by section 343 of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) . . .

Affected Occupations

Effective immediately, the only health care occupations covered . . . are the following: nurses, physical therapists, occupational therapists, speech language pathologist, medical technologist, medical technicians and physician assistants . . . This is a significant change . . .

Nonimmigrants-Waiver of Inadmissibility

. . . The Service will also waive inadmissibility . . . for aliens already in possession of nonimmigrant visas or who are visa-exempt aliens, including Canadians applying for admission as TNs . . .

. . .

Field Offices are hereby notified that this waiver should be granted without the filing of a formal application or fee. Further, any otherwise admissible nonimmigrant health-care worker granted a waiver of this provision shall be authorized admission into the United States with a single-entry Form I-94 valid for six (6) months except in the case of aliens who reside in and commute from contiguous territories. These aliens shall be issued a multiply-entry Form I-94 valid for six (6) months.

This procedure will be effective until further notice.

Nonimmigrants-Change of Status or Extensions of Temporary Stay

Applicants for change of nonimmigrant status or for an extension of temporary stay under a nonimmigrant visa category involving a health care occupation may also be granted a waiver . . . and may be granted an extension of stay of 1 year . . .

[If the health worker leaves the country the border inspector may still remove the one year I-94 and replace it with a six month I-94. This is not clear in this memo. -Ed]

Immigrants-General

. . .

. . . applications for adjustment of status filed by aliens who are the beneficiaries of approved employment-based immigrant petitions to work as health care workers must be held in abeyance until further notice.

An interagency task force has been established for the purposes of devising a procedure to implement section 343. The Service will issue a rule in the near future . . .

Nurses

. . . the January 28 memorandum . . . implied that a nurse could adjust status in the United States if the nurse obtained a certification from the Commission on Foreign Nursing Schools (CGFNS). The current CGFNS certificate is not equivalent to the certification discussed in section 343 of IIRAIRA. There are at least two differences between the two certifications. As a result, a nurse may not adjust status in the United States or be admitted to the United States on an immigrant visa until such time as the nurse obtains a certificate issued under the provisions of section 343 of IIRAIRA. Nurses seeking entry into the United States as nonimmigrant aliens should be processed pursuant to the instructions contained in the section of this memorandum discussing waivers.

. . .

For further information, please contact Adjudications Officer John W. Brown at 202-514-3240.

Louis D. Crocetti, Jr.
Associate Commissioner

If you are in charge of hiring for a hospital---and you have a Canadian employee---contact me for guidance. By all means do not delay any hiring decision based on this uncertainty...your business need not be jopardized because of this.

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