The Immigration Lawyer for Canadians Since 1979

FAQ Part I-Frequently Asked Questions: Canada to U.S. Immigration for Businesses and Professionals

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ANSWERS

Joseph C. Grasmick

1. What is this FAQ all about?

Here are questions and answers about U.S. immigration---just for Canadians. The information is Canadian-specific. (Immigration is very different for citizens of other countries.)

These are actual questions from  private E-mail questions to my office. I enjoy maintaining this FAQ since it mirrors my law practice. (If you intend to use my services feel free to make an inquiry. See information about our office and our fees FAQ to help you make this decision.)

Information on this FAQ is not found elsewhere. This is because most visitors to the U.S. are not Canadian. Most immigration resources do not deal with special issues facing Canadians. For example, only Canadians can get L-1 and TN permits at the border and on the spot. Also, most immigration law resources are not specifically dedicated to business visas.

You may also wish to refer to frequently asked questions about legal fees. These extensive questions deserve their own FAQ on another Web page.

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2. Canadian landed immigrant and Canadian citizen. Any special privileges?

ANSWER:  No.  Canadian landed immigrants no longer receive special privileges.

Here are special privileges for Canadian citizens:

Canadian citizens only:

Try the interactive visa selector to find the quickest and easiest option for your Canadian citizen employee.

Canadian Citzens:

Canadian citizens do not need a passport visa for most work permits. (A passport visa is a stamp from the U.S. Consulate.) Canadian Landed Immigrants do need passport visas for work permits.  All employees will still need the appropriate work permit on form I-94.

Anyone else:

Ask us if Canadian citizenship would make it easier to get a U.S. work permit for your employee. If you have Canadian landed immigrant staff consult with a Canadian immigration lawyer. You may be able to expedite Canadian citizenship.

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3. For a 4-month contract in the U.S. what type of visa do I need?

ANSWER: In some cases, you may not need a work permit. B-1 Visitors for Business can do many things in the U.S. that look like "work". For example, you can come to the U.S. to install, service and train if the services relate to sales of Canadian-made software.

There are three different ways to facilitate B-1 status for Canadian citizens:

1. The "smile and a wave" method. Just state the purpose of your trip when you travel to the U.S., or
2. The "official looking letter" method. Have your Canadian employer prepare a letter stating the purpose of your trip, or
3. Arrange for creation of a form I-94, with B-1 status. You can use this form for subsequent entries into the U.S. (Canadian citizens do not have to give up this form when they leave the U.S. for Canada.)

The B-1 is not a work permit. If you do need a work permit, first try the TN. It's quick. You get it right at the border. Employers and clients love it, especially if they're used to going through the time-consuming H-1 paperwork. I've seen many Canadians go through the H-1 paperwork unnecessarily.

To get the TN, your profession must be on the NAFTA-TN list of professions.

If your profession is not on the TN list, you may need the H-1 or another permit. For the H-1B you need to first apply to the labor dept. Then, apply to the INS. You pick up your I-94 at the border. (Canadians do not need passport visas.)

Once you get into the H-1 and other permits, costs in time and hassle increase. You may find that the expense isn't worth the revenues generated by a four month contract. In these case, try to make the B-1 work.

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4. Is there a minimum number of days an L-1 holder must stay in the U.S. every year?

ANSWER: Good question. Many people look at the name of the visa, "The L-1 Intracompany Transferee", and say "It's not for me. . .I'm not being transferred to the U.S."  They feel it's not for part-time work.

This is a misconception.

The L-1 temporary work permit is very flexible. You can come to the U.S. part-time or full time.

In fact, as long as you are performing services for the U.S. subsidiary, you can still be paid through the overseas parent. (Of course, you can be paid from the U.S. subsidiary, if you'd like. The immigration authorities may find it easier to deal with, if your salary comes from the U.S. subsidiary.)

Savvy human resource managers use this permit to cut expenses. I have seen forward-thinking companies:

• assign one experienced Canadian sales rep to cover a combined contiguous cross-border geographical area. . .instead of hiring another U.S. rep.
• hire one VP for human resources to manage both Canadian parent and the U.S. subsidiary
• equip one team of technical service specialists with work permits. The team can be on call to service either U.S. or Canadian customers.

Once you get your green card on the priority worker transferee category, you must then intend to work full-time in the U.S. Even then, though, extensive travel to assist the parent company abroad is allowable. (The priority worker transferee green card requirements are similar to those of the L-1.)

Incidently, Canadian tax accountants tell me that this flexibility allows for some excellent tax planning opportunities for Canadians. . .especially during the first year of L-1 status. If you need such an expert, refer to the list of international specialists.

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5. Can my spouse work if I'm on a TN or L-1?

ANSWER: Not automatically. You can change your status to permanent residency, in which case your spouse would be able to work on his or her green card.  Speed is crucial since green cards take time.  If you are on an L-1, your L-2 spouse can apply for a work permit.

Your spouse could also change from TD (dependent of a TN) to a temporary working visa. This is the same for L-2 (L-1 dependent), E-4 (E-2 dependent) and H-4 (H-1 dependent) spouses.

The issue of spousal employment is big.  Success in filing vacant jobs often rises or falls on whether a candidate's spouse can find work in the new location.  In the NAFTA agreement, the Working Group's mandate is to move towards allowing TD's to work, without having to find an employer sponsor. This is not reality yet. I will let everyone know when (and if) it happens. See the  News page about how to receive updates.  (This News is geared specifically for Canadians.)

 Here are some options:

• Get your green card. The entire family then gets Green Cards and work permission automatically.
• The spouse gets his or her own work permit. You already know about the TN. There are also the H-1 and other permits .
• Study. TD's can study. This is a way to productively spend time while waiting for the green card.
• Volunteer Work . This is a popular option for our clients. It must not be the type of work for which people are usually paid. Also, there should be no indirect form of reimbursement (expense account, provision of a vehicle, etc.) that the immigration authorities could view as wages. Be sure to check with the Dept. of Labor to ensure that the volunteer work does not fall under Labor Department minimum wage requirements.
• TD spouse Lives in U.S. and Commutes to Work in Border Community. If you live in a border area, the spouse can live in the U.S., while commuting to work to Canada. This often enables family members to continue to work in Canada while living in the U.S.
• The TD spouse continues to live and work in Canada. In a number of cases, the spouse continues to live and work in Canada. The principal L-1, TN or H-1 lives and works in the U.S., often splitting his or her time between the U.S. and foreign homes. It is perfectly permissible for the employee working in the U.S. to split time in this way. This, of course, requires spending time apart, but there are quite a few of our clients who have done this.

Summary: The best solution for most of our clients is the first option---get the Green Card fast.

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6. Should I renew a TN at the border or by mail?

ANSWER: Either way is fine.

You can extend your TN OR L-1 stay in two ways:

1. Appear at the border
2. Mail in your extension application

There are advantages to each approach. By comparing the number of entries on these two lists, you'll see my favorite approach of the two:

Advantages of Renewing By Mail:

• You don't have to make a trip to the border. You can do everything from the comfort of your home/office.
• You don't have to take your family to the border. (Remember, your family needs to renew their TD's or L-2's before they expire, too.)
• With foresight, you can mail well ahead of the expiration date. You'll get the approval (or a kickback you can respond to) well before you need it.
• No tough face-to-face questions from an inspector.
• Results are more predictable. Immigration Regional Examiners do nothing but review mailed applications all day. Border Inspectors wear a variety of hats.
• If there's a problem, you're in the U.S. and can fix it. You can keep working while your application is pending. If you're applying at the border, you'll be sitting on the wrong side of the bridge (or you'll miss your flight) while scrambling for the missing piece of paper.
• Less stress. Travel can be stressful enough, without having to worry about an afternoon at the airport or bridge.

Advantages of A Border Application:

• You can wait until the last minute---if your paperwork is perfect
• No form I-129 or I-539 is necessary. The I-129 mail-in form asks if your employer has ever filed a permanent immigrant petition on your behalf. This could raise questions about whether you have the "temporary" intent required for TN status. See the question on this page about the effect of prior green card filings.
• Some borders and people there have good expertise. See the Peace Bridge page for an example of such a place.
• You can get three more L-1 years instead of two years. This is because it is technically a new three year petition not a two year renewal.

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6A. Can I change employers while on a TN?

ANSWER: Yes. You will need approval of another TN application before you can start work with the second employer.

• "Ten days to get out of town": Once your employment terminates you may only have ten days to leave the country if you have not applied to change to another permit.  (A safer way is to apply before the first employment ends.)  The B-1/B-2 is a fine interim alternative. You can stay in the U.S. while the timely filed applications are pending. You cannot start work for a new employer until the TN is approved.
• How to shed the TN: To avoid TN amendment applications (and to avoid TN renewals altogether) allow us to help you and your employer get a Green Card.
• Double dipping is OK: If your two employments overlap, that's fine. You can have more than one TN at once.

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6B. Must college major match TN job?

ANSWER: Not always.

The technical policy is that your degree must "closely match" the TN job category.  This is one of the highest reasons for TN denials.  Nevertheless, consider the outcome on a sliding scale: the closer the match the better the chance of success. Here are possible outcomes:

1. A clear match furnishes the least problems. Barring exceptional circumstances you will get the approval. E.g.: a civil engineer applies for the TN Engineer category.
2. Some relationship between the major and the TN job title results in a toss-up. The application could go either way. E.g.: An engineer attempts the Systems Analyst TN category.
3. No relationship produces a low chance of success. Barring exceptional circumstances an approval will not happen. E.g.: a political science major tries to become a TN Systems Analyst.

How to Improve Your Chances

When the linkage is weak, here are some strategies:

• Link your job description to the TN category. Make the link a three way match---not just a two way match. Show how your degree, the TN category and the potential job description all relate one to another. If there is an employment experience requirement, link this experience to the mix.
• Show course concentrations in the academic program. Even though the major is not related, show substantial coursework in the required subjects.
• Get a credentials evaluation. Show that a course by course analysis of your transcript yields the required major---even if the diploma does not state the major.

An immigration lawyer's skills are particularly useful to:

• Assess your chances of success,
• draft employer's letter of support---showing linkages,
• use knowledge of actual practice at ports of entry by each immigration inspector to maximize chances of success, and
• obtain a credentials evaluation from an evaluator recognized by the INS.

Consider other immigration strategies if you cannot show linkages:

• Use another TN category that does not require academics. Examples include the TN Management Consultant and the TN Scientific Technician. We can discuss this over the telephone to help choose the right slot.
• Use another immigration permit which does not require academics. Examples include the L-1 and the E-2.

Is the H-1 the Answer?

While you should evaluate eligibility for the H-1, the TN better serves most Canadians. H-1 permits also require specific bachelor's degrees and tight relationships between the degree and the job. See the H-1 page for exceptional "work experience substitute for degree" rules.

Look at this graphic to see if your profession fits within the O-1, TN and/or the H-1B. Use this flowchart to decide between the TN and the H-1B.

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7.  Can I go from TN to Green Card status?

ANSWER: Yes.

It is perfectly legal to convert a TN to a Green Card.  Many Canadians have done this successfully.  A "No" answer to this question is a popular and harmful misconception.

A related question is "Will my Green Card application cause trouble when I renew my TN?

ANSWER: Perhaps. TN renewals with a pending green card application are still possible. They are tricky. You must carefully plan your strategy.

• Can I go directly from a TN to a Green Card?
• What is the TN to Green Card conversion process? 
• Do I need to get an H-1 first?

The regulation for L-1's and H-1's state what you need to show if you are renewing your permit and have a permanent application pending. To be safe, you should be prepared to show the same things for TN renewal. Register at the Electronic Newsletter to be automatically advised of new developments.

This dual intent doctrine is in the regulations for L-1 and H-1 permits, but is not specifically given to TN's. Right now, the immigration authorities generally treat TN's under the same doctrine. This could change. In fact, there seems to be a trend towards increased scrutiny of TNs with pending green card applications.

Here is a relevant quote from immigration regulations:

The Service has, traditionally, considered applying for adjustment of status as relevant evidence in determining whether an alien has abandoned the requisite nonimmigrant intent. Section 214(b) of the Act does not, however, require the Service to hold this position as an absolute rule. So long as the alien clearly intends to comply with the requirements of his or her nonimmigrant status, the fact that the alien would like to become a permanent resident, if the law permits this, does not bar the alien's continued holding of a nonimmigrant status.

Special Advantage to Canadians

Also note that may TN Canadians help their cases by traveling to Canada frequently. This means that if you are making a trip to Canada before getting your green card, your entry into the U.S. is "temporary" even if you have a green card application pending.

Furthermore Canadians do not need a passport visa. They do not need to pass scrutiny at the U.S. Consulate.

By Mail vs. at the Border

There is no form to fill out for the initial TN visa application. There is no requirement to disclose any pending green card applications. The Free Trade Officer would have to ask specific questions or take special efforts to check the computer. At all but one or two ports of entry they are not particularly interested in this issue. The TN is the main permit we handle, and I've only received a handful of comments from an officer regarding permanent intent since the CFTA and NAFTA.

The inspector will be more likely to ask questions about pending green card applications the longer you stay on TN status. (Incidently, if you are asked any questions, always tell the truth.)

If you "renew" your TN at the border, there is no form, but if you renew by mail there is a form which asks if your employer has filed an immigrant petition for you.

(See other questions in this FAQ about mail versus border renewals.)

Practical Pointers

Here are some strategies to minimize intending immigrant problems:

1. Have your lawyer show H-1 and L-1 type dual intent:
   • employment goals fit within the time period requested
   • the temporary permit is not for principal purpose of entry in advance of immigrant visa availability
   • will transfer abroad if employee doesn't have permanent status before extension period expires
   • prior history of little use of foreign workers in temporary/permanent status
   • no prior use of illegal aliens
   • employment bona fide-not an accomodation
   • established program for rotation of personnel exists
   • position abroad to use for employee when temporary U.S. assignment ends
   • employee not stockholder. If stockholder, show a record of international entrepreneurship
   • employee has history of maintaining correct U.S. immigration status
   • beneficiary's history of employment status, especially prior employment overseas
   • employee could reasonably continue career outside of U.S. after period requested ends
   • emphasize "temporary" elements in the TN job duties with a finite completion date
2. Get your green card before you have to renew your TN. Many readers delay green card applications fearing TN renewals will be jeopardized. Ironically, the longer the wait, the greater the danger. Have your employer contact us to begin the process.
3. Set up a job with a temporary mission to complete on TN status. Set up another prospective job description for your permanent residency application.
4. Maintain a residence in Canada. See the question in this FAQ about returning green card residents. That question gives you ideas for links you can show to Canada (That question shows links to the U.S. for green card holders. Just reverse the links--- show them for Canada).
5. Outsource scheduling and documenting your applications to a business immigration lawyer.

Many good immigration lawyers will not handle a "TN direct to green card" case. Many NAFTA experienced lawyers will. Each approach is valid. You should rely on the professional judgement of your retained attorney.

Your attorney will take into account the risks and benefits of each approach. These risks can be immigration risks. An example of an immigration risk is the chance immigration authorities will deny your TN extension application.

The risks can also be professional or business. For example, will employment last long enough for you to go through a TN, then an H-1 and then a green card application? Will you have to start at "square one" with a new employer caused by the extra H-1 processing time?

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8. Is there a future for a TN visa holder?

ANSWER: There is no top limit on the number of years a person can be on temporary TN status. Nevertheless, I expect that some day INS will say "no more renewals. . .after all, this is a temporary visa." Review current developments regularly for any news on this.

Go for your green card if you're going to be in the U.S. for a while.

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9. I'm going to get my TN visa soon? How long should I wait before applying for my Green Card?

ANSWER: You can apply for permanent residence whenever you like. Because of long processing times, you should start assembling the paperwork ASAP.

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10. How can I change from an L-1B to a Green Card?

ANSWER: If you acquired your L-1 based on specialized knowledge (an L-1B), I would consult with a lawyer to see if you can avoid an individual labor certification. Normally people who use the "specialized knowledge" category cannot qualify, but there may be a way to do it depending on your facts.

People on L-1A's (managers and executives) can, on the other hand, easily switch to permanent residency through the priority worker green card category.

You can get this green card at the "speed of light." (Note that the speed of light measured by government paperwork standards, is not quite the same as the actual speed of light!)

These green cards have two additional requirements not present in L-1 rules:

• you must be a manager or executive (specialized knowledge is not enough), and
• the U.S. subsidiary must be doing business for at least a year (new start-up companies do not qualify).

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11. Can I use the National Interest Waiver to avoid an individual Labor Certification for my Green Card?

ANSWER: The National Interest Waiver (and other "super" Green Care categories) is a nice way to get out from under the infamous labor certification.

If you have a Master's degree look into this. Even if you only have a Bachelor's degree, substantial employment experience can substitute for the missing academics.

What does national interest mean?

There are no clear rules.

This is both good and bad. It's good, because you and your lawyer have a good deal of latitude in showing that you fit into the category. It's bad, because you don't get a clear advance picture of where you stand.

Here's some new information that may help. This is official information from immigration's Northern Service Center:

To qualify for an exemption from the requirement of a job offer, and thus of a labor certification, you must submit Form ETA-750B, "Statement of Qualification of Alien" in duplicate and evidence to support your claim that such exemption would be in the national interest.

Factors that may be considered in determining national interest include but are not limited to improving the U.S. economy, improving health care, improving education and training programs, creating employment opportunities, improving wages and working conditions, improving the environment, improving cultural awareness and diversity through artistic endeavors, and significant scientific contributions.

The evidence should establish the significance of the program or activity in which you are engaged and the significance of your participation in the program or activity. What consequences would occur of you were unable to begin or continue your participation in the activity? What have you already accomplished in the field? How would your participation in the program or activity have a greater impact than others in the field? You may submit letters from recognized national experts in the field explaining how your participation would benefit the national interest. If there is an interested U.S. government agency, submit a letter from an official of that agency.

There are no official guidelines for national interest waivers. We have copies of several previous AAU decisions and often refer to them for guidance.

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12. Can I keep my Green Card while working abroad?

ANSWER:  Yes.  Simple prevention usually works.

Who Needs This Information

Many ask this question.  Here are common examples of at-risk Canadians:

• Green card holders, working for a U.S. company, transferred to a foreign division.
• Executives laid off by restructuring who are returning to Canada to work.
• Employees of multi-national organizations, who are needed back in Canada.

These job situations are common as our economy becomes internationalized.  In addition, with post 9/11 scrutiny, immigration is simply catching more residence-abandoning people who slipped through in the past.  Border enforcement payroll is exponentially larger now.  There are now in-country checks, exit controls and passport requirements.

I have heard these actual stories:

• "Immigration asked our manager to surrender his U.S. green card which he has held for four years.  What should we do?"
• "I have Canadian citizenship and a Green Card.  Do I have to go back to the U.S. within the year?  Jobs are not available right now and we have jobs in Canada."
• "I am Canadian, married to an American.  I have had a permanent resident card for three years.  I am interested in U.S. citizenship.  Can I apply and then move to Canada?  My husband is interviewing with a Canadian business but we would like to keep the 'moving back to the U.S. option' open."

• Apply for a returning resident permit.   A Re-entry Permit will create a presumption in your favor, should your green card status ever be challenged.  Even though the instructions on the form say that the permit is for those who are leaving the country continuously for more than one year, file it anyway---even if you will visit the U.S. before the year is up.  Also, consider filing the little-known Application to Preserve Residence for Naturalization Purposes.
• File 1040 income tax resident forms, not a 1040NR .  As I like to say "A 1040NR is an 'N-O'! "  Immigration law---which many accountants do not know---creates a presumption that you have abandoned your green card, if you benefit from filing a 1040NR.  If you do not have an accountant well-versed in expatriate tax matters, get one. You may wish to refer to the names and addresses at this Web site. (My bias: I have never wasted money on a good accountant.)  There may also be tax planning opportunities for you.
• Do not sign form I-407, Abandonment of Lawful Permanent Residence Status at the border or Consulate.  This makes your case difficult.  You may receive great pressure to sign this.  You worked hard to get your Green Card.  Do not give it up.  If you did sign this form, call me immediately.  We will see if we can make a timely retraction and get your green card back.   Put another way, remember this saying:  "The I-407 is the 'evil I'"!
• Be able to identify physical property in the U.S. where you can stay when visiting. Best, is home ownership. Second best, is a lease. Even a sublease is better than staying with family or friends. You can then meet the informal "pillow requirement". (Immigration inspectors will often ask, "Where do you live? Where does your head hit the pillow?" You will have an answer!)
• Come to the U.S. as much as possible for visits. Note that in addition to the above steps needed to preserve your residence and keep your green card, naturalization for U.S. citizenship requires more:  a certain period of actual physical presence in the U.S. There are some exotic exceptions, but generally you need to spend 2 1/2 of the past 5 years in the U.S. (counting from the day you file for naturalization) to qualify. (1 1/2 out of 3 years, if married to a U.S. citizen.)

  One of these exceptions is for people working on U.S. government contracts. Check to see if your prospective employer is working on such a project. Then see if you can work on it.

The Law

Incidentally, the law on snatched green cards is this: as long as you continuously intend to keep your green card, the immigration authorities cannot lift it.  The above factors only create beneficial presumptions as to your intent.

How I Can Help

Here are ways I can help you or your employees:

• Get Returning Resident Permit.  We can apply for a Re-entry Permit---the "White Passport".  This impressive looking document puts presumptions of resident intent in your favor.  It is extremely difficult for immigration to seize your green card when you have this permit.
• Prepare backup paperwork to have on hand for green card confiscation contingencies.  I can show you how to keep immigration from impounding your green card.  The goal is to create a situation that shows your continuing intent to keep your residence in the U.S., in spite of your absence.  You and your sponsors worked hard for your card.  You and your family may need it someday.  For most folks it is now harder to get the green card the second time around.  At the same time, it is remarkably easy to preserve your residence in advance of border problems. 
• Get dual citizenship.  For many people, dual citizenship is the prescribed remedy.  Citizenship is the crown jewel of the immigration world.  U.S. citizens can reside anywhere.  Denaturalization is almost impossible.  You will never be asked to "give up" your U.S. citizenship in a process similar to the I-407.   If you have a green card, please keep my  U.S. citizenship page   marked as one of your browser's Favorites.

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13. Can someone hold dual U.S.A. and Canada citizenship?

ANSWER: Yes. See our U.S. citizenship page.

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