Established in 1979

Grasmick's U.S. Business Immigration News for Canadians-1998 Archives, Jan.-June

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Disney and the INS

(June 26, 1998)

"We're working with Disney up in Orlando to do customer training for our inspectors. . .We call a customer after their application is acted on to see how they felt about the process. So we're really trying to manifest that commitment in our deeds."

----Robert A. Wallis, District Director, INS Miami, Miami Today, Week of Thursday June 18, 1998

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Terrorism Specter Supports "Exit" Interviews

(June 25, 1998)

This morning I was surprised by a front page newspaper article Terrorism fear bolsters case for checkpoints. The article revealed unexpected opposition to efforts to kill off proposed section 110 border checkpoints. (See Fierce New Border Controls below for background.) Advocates of these checkpoints use a novel argument.

Today's Buffalo News reports:

Terrorism fear bolsters case for checkpoints

Efforts to kill off the proposed Canadian border checkpoints at Niagara River bridges and other crossings---and the miles-long traffic jams they would generate---have received a setback. For the first time, congressional backers of tough immigration controls are raising the possibility that international terrorists are using Canada as a gateway to the United States. The chairman of the House Subcommittee on Immigration, Rep. Lamar S. Smith, R-Texas, has circulated among fellow Republicans excerpts from a Canadian government intelligence report as proof that terrorists were finding "safe haven" in Canada. In a letter to Canadian Ambassador Raymond Chretien, Smith called disclosures "shocking."

. . .

Fueling this dispute is a 1996 U.S. law that, starting Oct. 1, requires government agents to question every Canadian on his way home. . .Until Wednesday, Rep. Jack F. Quinn, R-Hamburg, thought that legislation to cut back the program would pass Congress this summer. But upon learning of Smith's disclosures, Quinn said: "If Congressman Smith is raising national security and public safety concerns then I think the best we can hope for is to delay implementation of this plan for a year."

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Am I a Management Consultant?

(June 22, 1998)

Hello:

Thank you for your message.

One of the options you should look at is the TN Management Consultant permit. There may be other options, but let us start with this one. You can get this permit without a bachelor's degree.

Requirements:

• baccalaureate degree, or
• five years' experience in consulting, or
• five years' experience in a field relating to your U.S. job

As a "quick and dirty" test for your eligibility, see if your potential job can track the Dictionary of Occupational Title's description of Management Analyst and Consultant in the job description. For your convenient reference, here they are:

Management Analyst 161.167-010 (profess. kin.) Alternate titles: systems analyst. Analyzes business or operating procedures to devise most efficient methods of accomplishing work: Plans study of work problems and procedures, such as organizational change, communications, information flow, integrated production methods, inventory control, or cost analysis. Gathers and organizes information on problem or procedures including present operating procedures. Analyzes data gathered, develops information and considers available solutions or alternate methods of proceeding. Organizes and documents findings of studies and prepares recommendations for implementation of new systems, procedures or organizational changes. Confers with personnel concerned to assure smooth functioning of newly implemented systems or procedure. May install new systems and train personnel in application. May conduct operational effectiveness reviews to ensure functional or project systems are applied and functioning as designed. May develop or update functional or operational manuals outlining established methods of performing work in accordance with organizational policy.

Consultant 189.167-010 (profess. kin.) Consults with client to define need or problem, conducts studies and surveys to obtain data, and analyzes data to advise on or recommend solution, utilizing knowledge of theory, principles, or technology of specific discipline or field of specialization: Consults with client to ascertain and define need or problem area, and determine scope of investigation required to obtain solution. Conducts study or survey on need or problem to obtain data required for solution. Analyzes data to determine solution, such as installation of alternate methods and procedures, changes in processing methods and practices, modification of machines or equipment, or redesign of products or services. Advises client on alternate methods of solving need or problem, or recommends specific solution. May negotiate contract for consulting service. May specialize in providing consulting service to government in field of specialization. May be designated according to field of specialization such as engineering or science discipline, economics, education, labor, or in specialized field of work as health services, social services, or investment services.

Remember: while you are entitled to make your best presentation, always tell the truth to the INS. This category is one of the trickier ones. This is because the INS feels there has been abuse by applicants who use the permit just because "they don't fit anywhere else."

You need to provide extensive documentation proving your eligibility. An immigration lawyer can help you do this. (See the FAQ question re: "Do I Need a Lawyer" with details of our services.) You may wish to read comments from clients to help you decide if our firm should help you. At the very least your lawyer should use the Canada-U.S. Business Immigration Handbook. The Handbook has an entire section about this category, with strategy charts and sample letters. There are links to the publisher on all of the web pages.

Best regards,

Joe

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Health Profession Limbo

(June 22, 1998)

The new good news: The State Dept. is now approving residency applications for certain health professionals. These applications have been held in abeyance pursuant to a new immigration law.

The bad news: Others are still held. Look at the table to see where you or your employee stand:

See prior News articles for more information about new health profession rules.

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TN to Green Card

»Analysis« (June 22, 1998)

Here is more information about TN/Green Card Dual Intent.

Renewing a TN while applying for a Green Card is tricky, but doable. American Immigration Lawyer's Association labor expert Steve Clark reports his strategy in the AILA Monthly Mailing Labor Practice Advisory:

Canadians tend to cross the border with some degree of frequency. The decisive issue for them will be nonimmigrant intent. A pending labor certification or 1-140 may pose a risk for the applicant, because the immigration inspector may call his or her nonimmigrant intent into question. This is more likely to happen at the Mexican border. The issue of nonimmigrant intent will usually not surface if the application is filed with the Nebraska Service Center, which is the only service center that accepts these applications. The downside of filing with the Nebraska Service Center is that it usually takes a long time to process.

How does the issue of intent come up? The officer has never seen you before. You are entering temporarily, you will be travelling several times during the year so it is not a question of intent to immigrate on this entry which could give rise to a fraud finding, but it is a quagmire that could bar your admission as a TN. What is the likelihood of it coming up? If the car is registered in the U.S., or the applicant has U.S. driver's license, this could spark curiosity. Although dual intent is not recognized for TNs, the test is easier than the customary nonimmigrant test of retention of a foreign residence you do not intend to abandon. TNs are only required to enter temporarily without intent to establish permanent residence. 8 CFR § 214.6(b).

Make sure the client fully understands that, notwithstanding their long term goals, they do not intend to establish permanent residency on that particular entry. If they know they will leave for Christmas, a wedding or business, they have entered temporarily until that event. Because TNs enter frequently, they do not intend to establish permanent residence on a particular entry.

Maintaining legal TN status while pursuing a Green Card is not a do it yourself project. Furthermore, this strategy is not for everyone. Make sure you are represented by immigration counsel at every step.

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Detained! A Reason for Citizenship

(June 22, 1998)

Here is another reason to exchange your Green Card for dual citizenship: U.S. citizens do not have to carry proof of citizenship. In contrast, INS feels that permanent residents must always carry their green cards.

Recent events in Southern Florida (where there are now 1+ million Canadians) show the significance of this difference. The Miami Herald recently reported that

. . .[INS] agents tried to round up 23 workers---including three who insisted they were legal immigrants, but were detained because they were not carrying their green cards, as required by law.

INS naturalization delays have increased dramatically. If you are eligible ask us to start your application now. Review the citizenship page for other advantages and eligibility requirements.

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Searchable DOT Descriptions Available

(June 22, 1998)

An astute reader found a new resource: United States Department of Labor Office of Administrative Law Judges Law Library Dictionary of Occupational Titles (DOT). That site contains the full text of all of the job descriptions from the huge Dictionary.

The Website isn't new. It has been on our Links page for some time. What is new is a search engine that works! Previously, it was tough---if not impossible---to find the description you were looking for. The DOT is voluminous. Without a search engine the data might as well have been in an INS file drawer.

That site facilitates many goals. For example, compare your potential TN profession with a DOT job description to see the fit. See if your prospective employee can get a border work permit on the spot.

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Fierce New Border Controls

(June 22, 1998)

Opposition increases to Section 110 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA).

Section 110 requires the Immigration and Naturalization Service (INS), no later than September 30, 1998, to develop and implement an automated system of entry and exit controls for every non-U.S. citizen coming into and leaving the United States. If implemented, Section 110 will cause interminable traffic congestion and back-ups at the borders. This in turn will have a serious and negative impact on trade, tourism, and the U.S. economy. Section 110 will be a burden to U.S. citizens and visitors alike.

The Puget Sound Business Journal puts this into perspective:

In 1996, as part of an anti-immigrant backlash, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. Included among IIRAIRA's many unreasonable provisions is a requirement for an automated entry and exit control system (Section 110) that will record the departure of every foreign visitor leaving the United States, and match it with the record of the visitor's initial arrival .

With the current available technology, the only way to implement Section 110 is to force every car at border crossings, for both entry to and exit from the U.S., to stop, have each person fill out a biographical admission form, wait for the inspector to review the form, cross-check identification, and enter the information into an electronic database. This will happen more than 150 million times a year.

Senator Spencer Abraham (R-MI) and Representative John LaFalce (D-NY) have introduced "The Border Improvement and Immigration Act of 1997" (S.1360/H.R.2955).

The purpose: remedy the serious and negative consequences of Section 110.

The Abraham/LaFalce bill would:

• Eliminate requirements in Section 110 to implement an entry-exit control system at the land borders until further study;
• Require a feasibility study regarding implementation of a control system at all ports of entry;
• Exempt U.S. permanent residents and Canadians from requirements; and
• Provide for increased border measures to address delays that already exist.

Congressional support for the bill is growing. Many Members of Congress have cosponsored the legislation.

Many influential organizations support the bill. Here is a partial list: American Trucking Associations, Association of American Railroads, Bellingham City Council, Border Trade Alliance (AZ), Can/Am Border Trade Alliance, Chrysler Corporation, County Executives of America, Detroit Regional Chamber, Ford Motor Company, National Governors Association, Pacific Northwest Economic Region, Republican Governors Association, and Travel Industry Association of America.

AILA is working with these and other groups to oppose Section 110 and support the Abraham/LaFalce bill. This information is courtesy of that organization.

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This Site in Nation's Best 100

(June 22, 1998)

This site is rated #20 in the Red Street "Small and Mid-Sized Law Firm Web Sites" category.

According to Red Street Consulting's principals Rick Klau and Erik Heels:

After nine months of research, we have selected your Web site as one of the best in the legal Internet community. . . .We looked at approximately 4,000 Web sites---including all of those listed on Yahoo and FindLaw---and have selected 100 that stand above the rest in terms of content, presentation, and experience.

Sites were reviewed multiple times in the review process. The reviews considered substantive content, page layout, navigation elements, and interactive elements.

See the review of our site. Also see the complete list which includes other immigration sites.

The announcement of our listing was made at the American Bar Association's annual TechShow conference in Chicago, IL. The announcement coincided with publication of a new book by Red Street Consulting's principals Rick Klau and Erik Heels, Law on the Internet: The Best Legal Web Sites and More.

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Texas TD's Get SS #?

(June 22, 1998)

Mr. Grasmick:

First of all, let me compliment you on what I believe to be the best Canada-US page on the net. I wanted to comment on your Social Security page where you state that "In practice, the Social Security Administration will seldom, if ever, give out non-working numbers."

This seems not to be the case in Texas, and may soon change elsewhere. I recently moved to Texas on a TN-1 status, with my wife as a TD. The Texas Department of Public Safety requires a Social Security number (not an ITIN) for a driver's license. The Social Security office regularly grants non-work SSN's to TD status aliens who require a driver's license. One applies for the license in the normal manner at the DPS office, and processing is completed to the point where the SSN is needed. A letter is generated which is given to the TD, and may be presented to the SSA for a non-work number.

This information is given at http://www.txdps.state.tx.us/license/WEBSSN.HTM which, in part, states "Federal law has required applicants for a commercial driver license to show proof of SSNs since 1990. Currently, 23 other states require SSNs for all driver license applicants. In October 2000, federal immigration law will go into effect mandating that all states capture SSNs for all driver licenses and ID cards. "

Just thought you might like to know.

Regards, J.H. Rousseau

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How to Inform Employers

(June 22, 1998)

"Why should we go through the hassle of hiring a Canadian for the job?"

This is a question many employers ask when receiving a job application from Canada. It is also a question answered at the FAQ. To their own detriment employers do not always have this answer. To the applicant's detriment some employers will not even consider a Canadian's resume.

I estimate that thousands of good employee-employer matches could have been made had this information been available.

To disseminate this information I made an easy to print webpage containing the answer to this question. This is in response to requests from many of you who report that printing the entire FAQ is unwieldy. (Employers are often too busy to read the entire FAQ anyway.)

Look for the blue table on the FAQ, or follow the link now:

If this page is useful I will make other short pages. Likely candidates:

• Grasmick's TN List of Professionals
• The TN at a Glance Table,
• "FAQ question 17. My company feels that a Green Card is a passport to leave and are "sitting on the fence" as far as helping me. What can I do?"

What do you think? Which sections of this Website would be particularly useful to print and pass along?

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Programmer vs. Analyst?

»Analysis« (June 22, 1998)

What is the difference between a programmer and a programmer/analyst?

This difference is critical. System analysts---including programmer/analysts--- qualify for the quick border TN. Programmers do not.

Programmers are often limited to the cumbersome and unreliable H-1. Some programmers will not even qualify for the H-1. (See the Computer Professionals page for details. Also see the Dictionary of Occupational Titles for Systems Analyst descriptions.)

Forum Employment Topic administrator John Chettleburgh gives the answer:

This is really easy. A programmer/analyst can otherwise be known as a "software analyst", a "development consultant", an "applications architect", a "software design analyst", etc.

The HR manager should emphasize what truly 70%+ percent of a programmer/analyst's job---analysis of business and technical specifications for the purposes of implementing custom applications code; design, analysis and implementation of applications testing methodologies for the purposes of supporting implemented systems, analysis of user requirements to determine further design and architecture enhancements, and analysis of user and development team requirements for the purposes of implementing technical and user documentation.

The difference between a programmer and programmer/analyst is that of what percentage of time a person actually cuts code vs. performs analysis. To use an analogy, a junior carpenter (i.e. a programmer) is told to "hit the nail right here by lifting the hammer and striking the nail" whereas a senior carpenter (a programer/analyst) will look at what needs to be built, or will look at the blueprints, and will go ahead and hit the nail. The main difference in the real world is the size of the construction job. Smaller jobs (or companies with information technology) have fewer carpenters (or programmers), therefore, everyone is expected to hammer, saw, measure and sand, whereas larger jobs have more people with specific roles i.e. just saw, just sand, etc.

Ultimately, I have NEVER seen a programmer do nothing but program. By virtue of the fact that a company wants to see a junior programmer progress into more of a full-fledged programmer/analyst, the programmer is expected to take on more and more analysis related work. In fact, they are the primary people who test developed software code, which has a tremendous amount of analysis related work.

Call it what you like, a systems analyst really is any information technology professional who is paid to think!

John

John Chettleburgh
Manager, Business Development & Integration
CNC
60 Bloor Street West
Suite 1400
Toronto, Ontario M4W 3B8 CANADA

mail: jchettleburgh@cnc.ca http://www.cnc.ca
Toll free phone (800) 540-3594 x 284
(416) 962-9262 x 284
Direct phone (416) 964-9599
Fax (please attach cover page)

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New TN Regulations

(March 20, 1998)

INS has just changed the NAFTA regulations. I attach the full text of these regulations for our readers.

Here are some highlights:

• The self-employed or subcontractors can get TN status if performing services for another U.S. entity. They cannot "control" that entity.
• TNs applying for Green Cards. INS refused to liberalize rules for TNs with ongoing Green Card applications. See the FAQ question "7. Will my green card application cause trouble when I renew my TN?" for a discussion of this "dual intent" issue.

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Top Ten Border Mistakes

(March 20, 1998)

A reader in our Forum asked me to list the most common mistakes. Here they are:

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How to Retire in the U.S.

»Analysis« (March 20, 1998)

There are millions of non-U.S. citizen retirees in the U.S. According to American Demographics Magazine in Florida alone, there are 1.5 to 2 million Canadian visitors per year. 15 to 25% of these visitors are 65 or older. Many older Canadians come to Florida for their health and tend to be widely dispersed throughout the state. Some retirees split their time between the U.S. and their home country. Others remain in the U.S. full-time.

In spite of this high volume of U.S. retirement, there is no visa available for "retirees"! A separate visa category for retirees did exist, but it was closed down in the mid-1970s due to increases in U.S. immigration.

This surprises many clients, who certainly do not intend to create any burden upon the U.S. economy. In fact, Canadians in Florida alone spend and contribute $2 billion per year.

How then, can you legally retire in the U.S.?

Temporary Visits

Most Canadian citizen retirees probably travel to the U.S. as temporary visitors. (B-1 or B-2 status). There are two types of tourist visas: visitors for business and visitors for pleasure. Visitors for business are B-1 visitors. Visitors for pleasure are B-2 visitors.

Although INS will allow you into the United States for only a relatively short period of time, there is no prohibition against leaving the country and entering again. Indeed, millions of Canadians of retirement age (the so called snow birds) make lengthy annual trips to the United States.

The Immigration Service normally allows Canadians six months when they enter on temporary visitor status. Under the Free Trade Agreement Canadians can now get a document showing temporary visitor for business status for a period of one year. This status is the easiest to obtain of all the temporary permits.

Also look at the work visas. These visas allow an individual to live and work in the U.S. for an extended period of time. Moreover, the individual can work for a U.S. employer and receive a salary from a U.S. source. This is a distinct advantage over the B-1 visa for many retirees.

The various temporary work visas are designated by letters of the alphabet. The most common categories are: H (Professional), L (Intra-company Transferee), E (Treaty Investor or Treaty Trader) and, TN (Free Trade Professional). The E Treaty Investor quite popular for Canadian businesspersons.

The advantage of H, L, E or TN visas is that no labor certification is required. Also, there are no visa quota visa waiting periods, as there are for permanent residency. Thus, with the proper documentation, the visa is relatively quick to obtain.

The disadvantage of applying for these temporary work visas is that the individual must return to their country after the visa expires. Another disadvantage for some people is that while the visas allow you to work, you must continue working or the visas are invalid. A solution for retirees is to either continue working part-time, or to apply for permanent residence (green cards).

Permanent Residency

Another route to work permission in the U.S. is through a permanent residency petition based on labor certification. Permanent residency has some distinct advantages over temporary visas for certain individuals. If you are interested in obtaining permanent residence through labor certification, you will have to have a U.S. employer sponsor you. Permanent residency through labor certification takes more time and paperwork than do temporary permits.

Permanent residency allows you to change employers after entering the United States. At the time of entering the U.S., the individual must intend to work full time for the sponsoring employer. Later he or she may choose to give up the job. However, it is inadvisable to leave the job very soon after receiving the green card because the INS will hold that you never intended to work.

There are many advantages to obtaining Permanent Residency, particularly for retirees. For example, with permanent residency an individual can pass on immigration benefits to certain relatives, including children. See our Complete List for all the ways you can sponsor relatives. A permanent resident can apply for citizenship after a waiting period. (Contrary to popular belief, one can hold "dual citizenship" in the U.S. and in Canada.) See the Citizens page at http://www.grasmick.com/citizen.htm

In addition to permanent residence through labor certification, one can qualify for permanent residency through a relative sponsor. Again, see the Complete List for all the possibilities.

You may also have a permanent residency or U.S. citizenship claim traceable to a more unusual source. For example, some people who believe their prior green cards "expired", may find that their green cards are still valid. Also, we estimate that thousands of Canadians are already citizens of the United States and do not know it. Placing your situation through the Visa Selector may identify an option.

Hidden Claims to U.S. Citizenship

A common scenario is a person with a U.S. citizen parent who did not realize citizenship passed automatically from the parent. A person can even have U.S. citizenship passed to him or her through a U.S. citizen grandparent! According to U.S. law, you can be a citizen of the U.S. and of another country or other countries. Also note that you or your ancestors may have retained US citizenship even if you were naturalized in another country. (Compare your situation to the table on the Citizens page.)

The State Dept. has published a standard: the Department presumes a person intends to retain U.S. citizenship when that person obtains naturalization in or declares allegiance to another country. This new policy is retroactive. This means that it applies to people who may think they already lost their citizenship---even if the U.S. Consulate already made a negative finding! According to a Canadian news article, over 250,000 Canadians could benefit from the new policy. A State Dept. spokesperson says that the Dept. is prepared to consider reopening these cases.

This new policy benefits retirees. This is because older rules concerning transmission of citizenship were quite liberal in many respects. The older rules concern people (and their parents) who were born at earlier dates---people of retirement age.

Pitfalls for Retirees

All immigrants to the U.S. must show that they have means of support and will not become public charges. This may be more difficult for retirees who may not have a solid job offer to attach to the permanent residency applications. In these cases evidence of assets large enough to provide a living for several years should be emphasized.

A common issue for Canadians is preservation of Canadian social and health insurance benefits. Spend time on the Employment and Financial topic of our Forum for information on these topics.

Finally, a most important consideration in retiring in the United States are income tax considerations. You should take into account both the Canadian income tax and the U.S. income tax ramifications of your move. Another important tax consideration are estate taxes. You should consult with a competent tax advisor with experience in Cross Border taxation, before your move to the U.S.

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In Memory of David Stanton

We were saddened by the loss of Dave Stanton, who passed away this month in his San Diego home.

Dave maintained a Webpage on this site and was a valuable contributor to the Canada-U.S. Business Immigration Handbook. He was one of the national experts in labor certifications---honored as "Mentor of the Year" by the American Immigration Lawyers Association.

He was also a close friend---a friendship that began when we served together in Peace Corps Paraguay 1972-1975.

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New Website-The North American Trade Dependent Alliance

(March 20, 1998)

Please check a new Website: The North American Trade Dependent Alliance According to the directors, NATDA has no formal membership. "The site really belongs to all of us who have been impacted by either NAFTA or the dependent visa situation." The site has links to helpful hints and information, including a chat page under development.

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President as TN-1 Engineer: Approved!

(March 20, 1998)

Even if you are a manager or executive, you can still be a TN professional. The INS recently approved one of our executive management clients under the TN Engineer category.

The President of our client company uses the techniques and principles of engineering while discharging his day-to-day duties. Indeed, he was hired as President of the company because of his technical knowledge.

This case was particularly challenging. We needed to show that in spite of being the company President, he was also in essence the company's Chief Engineer. His duties tracked the Dictionary of Occupational Title's description for engineer regardless of the fact that he was the company President. A mistake would have been fatal. NAFTA has no category for "TN President" and our client did not qualify for L-1 status.

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