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

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ANSWERS

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

. . .conventional methods just don't cut it in this tight labor market. "There's a war for talent going on in the economy. . ." ---James M. Citrin, communications recruiter, in Business Week

ANSWER: You shouldn't---unless the Canadian is the best person for a key job.

If the Canadian is the best candidate, you should. The short-term hassles far outweigh the benefits of having the right person for the job.

As you know, hiring the right person improves profitability. More employment for U.S. workers results.

Our firm handles immigration work for managers 1) smart enough to recognize value (the best person for the job) and 2) with enough judgment not to be frightened by immigration.

"Hassle" usually means uncertainty. By out sourcing to experts, hassles can be minimized. Immigration counsel can quantify the amount of paperwork, cost, timing and chance of success. With this information, you can intelligently weigh the costs against the benefits.

How to Expedite and Enhance Recruitment:

• Take advantage of labor surpluses in Canada. People in short supply in the U.S., may be plentiful in Canada. For example, many specialized computer professionals are looking for work in hard-to-fill U.S. positions.
• Use existing Canadian employees if you have Canadian operations:
  • Up and running: Presently employed executives, managers, and technicians have the immediate expertise to effectively tap the U.S. market.
  • Double duty: The employee can split time between the U.S. and Canada. Many clients use one person for the same position in each country. Examples include "North American V.P. for HR" and "Sales Manager, Western North America".
  • Special work permits: Congress provides a visa just for these employees: the L-1 intracompany transferee visa and it's green card counterpart. Your employees can get the L-1 right at the border.
• Fill the position with the most qualified applicant, faster. It's easy to add Canadian provinces to your recruitment universe. This increases your chance of quick success. The Globe and Mail and Canada Employment Weekly are effective additions to your help wanted media. You can run resumes you receive through the visa selector. You can also ask us for a customized recruitment template: characteristics you should look for in the applicants for quick border work permits.
• Canadian applicants may live closer to you, than other applicants. Relocation may be quite easy. An astounding percentage of the Canadian population lives near U.S. population centers. For example, an LA job applicant would have to travel seven times further for a NY City job interview, than would an applicant from Toronto. If your company is near LA, relocating from Vancouver requires half the travel distance than relocating from New York.
• Relocation of household goods and automobiles is simple, and duty free. The major U.S. moving companies operate in Canada. One such firm provides us with details at this Web site.
• Canadians are already accustomed to business travel to the U.S. Rare is the Ontario professional who doesn't take multiple U.S. trips each year. This is because Canadians do not need visas for business travel. They can enter on border B-1 permits.
• Work permits are easier for Canadians. This entire Web site covers this premise. For example, Canadians can get the L-1 and TN work permits right at the border---without long waits for approval of mailed applications.

Special Canadian Contributions:

• Develop the Canadian market for your product. Canada is one of the best customers for U.S. products. The employee's knowledge of Canadian professions and markets can be valuable to you.
• Rationalize geographic sales areas. Use immigration permits to shrink geographic areas. By ignoring the border, one person can cover a smaller U.S./Canada contiguous area.
• Enjoy a common culture and language. Similar business cultures mean immediate adaptation to your business environment. Relocation is easier on the employee and family. In addition to English there's a bonus: many Canadians are bilingual. (English and French.) Even if you do not need French language capability, a person with two languages can learn a third easily. This can be an asset for international activities.

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15. How can I convince the employer to sponsor me?

ANSWER: Educate the employer. Here are some pointers:

• Use this Web site. 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 immigration paperwork for previous employees. You may wish to deal with the issue head on: attach selected materials to your resume.
  • First, use the visa selector.
  • If the employer doesn't have Internet Web access, print out the page which covers the work permit you seek. We design our Web pages to also be stand-alone printed documents. We will often set up our fax card as our printer, and fax Web pages to interested parties. We also send diskettes to HR managers who do not have Web access. Sooner or later they will have to go on-line---you can perform a valuable service. (You can put all the free diskettes you get in the mail to good use!)
  • Print out this FAQ-Frequently Asked Questions, especially the question "Why should I hire a Canadian?"
  • Keep the News page in your bookmarks to take advantage of new benefits.
  • Refer the employment specialist to the "HR Manager's Toolkit" section of the home page.
• Put our office in touch with your employer. You can do this by setting up a consultation--three way if you like.
• Suggest that your employer out source the immigration work. The only employer obligation would be to support you financially and sign at the "x".

Our clients have used these techniques:

• Find an inside advocate. According to top recruiters, there are two players:
  1. the HR specialist, and
  2. the manager who really needs you; your "champion".
  Often you will need the hiring manager to be your advocate. The HR specialist will later help you with general corporate-wide relocation issues.
• Find another employer. As a last resort, find a company savvy enough to recognize value (you) and with enough confidence to feel secure facing immigration. That's why there are a few corporate leaders, and many followers. Even smaller companies need to be international. (Many smaller companies secure a competitive advantage by looking beyond the border.) Successful HR managers will look beyond the border to fill a job with the most qualified candidate. If an employer would hire you "but for" your citizenship, there is a U.S. shortage of professionals in your field. You are probably in great demand. This may not be apparent to you, since there may be a glut in your profession in Canada.

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16. Can I keep both the U.S. Green Card and Canadian Landed Immigrant status?

ANSWER: Yes, you can keep both...but you better have a good story!

Here's the problem: to keep your green card, you have to have the intent to reside permanently only in the United States. Canada requires a similar intent of it's landed immigrants. How can you intend to reside in both countries at once? If INS suspects that you no longer intend to reside permanently in the U.S., they can lift your green card. This usually happens during border crossings. The issue can also come up during naturalization: to become a U.S. citizen you must have intended to reside permanently in the U.S. continuously since the day you got your green card.

As a practical matter, you'll have some explaining to do at the border if INS finds out you hold residency in both countries.

Nevertheless, courts have held that application for and receipt of landed immigrant status in another nation, without more, does not establish intent to abandon permanent residency in the U.S. It is a significant factor showing that one intends to give up U.S. residency, but is not conclusive.

Here are some solutions:

• Get citizenship in one country or another. With U.S. citizenship, you can reside wherever you'd like.
• Apply for a Returning Resident permit. (For information on this permit, and other issues concerning Returning Residents, you may request an E-Mail report.) This permit diminishes---but does not eliminate---the chance that INS would be able to lift your green card.
• Get a temporary work permit for one of the countries and keep the permanent residence in the other.

If you need information about the impact of holding green cards under Canadian law, please contact a Canadian immigration lawyer.

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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?

ANSWER: We advise our clients---both employers and employees---that if an employee is chained to a company via a temporary work permit, there is something wrong with the relationship. They should get on with the green card, and focus on other aspects of the relationship.

On the other hand, there may be other reasons the employer is delaying. Perhaps they are operating under incorrect assumptions or fears of the process...or just, inertia? Perhaps they think they have plenty of time, and do not realize that processing times for labor certifications are increasing exponentially?

Yes, you are free to leave the company if you have a green card, but:

• The green card is a valuable fringe benefit that employers can confer on employees. Although it may seem expensive, the perceived and actual benefits to you greatly exceed the expense to the employer.
• There is less hassle for the employer. The employer can eliminate the expense of renewing temporary permits by getting permanent status.
• There is a top limit on L-1's. The employer may wait until it is too late, and then be without your services entirely.
• When an employer does not sponsor the employee, that employee then has powerful incentive to find another employer who will sponsor you. This is particularly crucial in positions that aren't easy to fill.
• If your corporate ownership structure changes, your temporary permit could become invalid. By getting you a green card, the employer does not have to worry about any changes in the corporate structure or in your job description.
• Your employer cannot use you on projects requiring certain security clearances without your green card. The U.S. government requires this for many of it's contractors.
• Creative arrangements can minimize employer risk. You can give some kind of commitment or guarantee that you will stay with the organization for a particular period of time. Negotiate a longevity bonus in your compensation plan with an incentive to stay with the company. Perhaps you can commit to reimbursing the company for the cost of immigration/legal expenses if you leave the firm within 18 months of receiving your green card. Be creative. Make sure that it is a reasonable proposal, and be sure that it overcomes their fears. (Thanks to John Chettleburgh for this idea.)

Perhaps you can show the above list to your employer?

By the way, here are some advantages to you personally:

• Financial security for you: Your spouse and children can normally obtain permanent residency with work permission, without separate employer sponsorship.
• Security for family: family has U.S. immigration status if you should pass away or lose job.
• Benefits to relatives: You can pass on immigration benefits to certain relatives.
• Pay resident tuition. In many states, green card holders pay less tuition for College and University. In some cases, savings are considerable---thousands of dollars a year.
• Adult children can stay in U.S. If children have their green cards they can live, study and work in the U.S. after turning 21. Otherwise they will have to get student visas to study and work visas to work. They will not be able to reside with you as U.S. residents.
• Eligibility for life insurance. Our clients report that some insurance agencies require green cards.
• Obtain professional license and credentials. Some states require green cards before granting professional licenses.
• Eligibility for full citizenship: After a waiting period, you can apply for U.S. citizenship. (Note: you do not have to take out citizenship---you can be a permanent resident forever.) Dual citizenship is also possible. You need not give up your present citizenship.
• Ease in travel: No need for U.S. passport visas or form I-94 for international travel. An end to restrictions on travel, when renewals are pending---there are no renewals required for green cards.
• Immunity against future changes in immigration rules, that could hurt your temporary permit.
• Access to security clearances, eligibility for government grants and exemption from export restrictions.
• Legal rights: More rights under U.S. law.
• Tax benefits: Possible income taxation benefit to permanent resident who may be taxed as "non-resident" in home country. (Contact a tax advisor for details.)
• Freedom in choosing place of residence: Green card holders can permanently move to the U.S. On the other hand, it is not necessary to be continuously present in the U.S. (You and other readers can request an E-mail report on Returning Residents.)
• Home purchase: Mortgages may be easier to get. Many banks require permanent residency or other long-term visa, before granting mortgage. Take advantage of U.S. tax benefits of home mortgage payments.
• Political campaign contributions. Green Card holders can make contributions in connection with State and Federal Elections. Other foreign nationals may not.

Consider using the resources of our firm to assist you in educating your employer.

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18. Do I need a lawyer?

ANSWER: Sometimes.

The Immigration Service does not require applicants to have a lawyer. There are even some simple cases--such as relative petitions--which most people file on their own. Nevertheless, 97% of our clients confirm they were satisfied with our services. We suggest that you contact our office before you or your company represent yourself. Also, see our clients report the benefits of legal assistance.

Applying for immigration benefits is not the same as applying for a driver's license. Immigration law is extremely complex with hidden pitfalls. A Federal Court of Appeals judge stated:

With only a small degree of hyperbole, the immigration laws have been termed "second only to the Internal Revenue Code in complexity."

Do you have a fit with our office?

If you decide to use an immigration attorney I invite you to evaluate the focus and experience of our office. See how closely you match the characteristics of my satisfied clients:

• Canadian citizen with employment-based application,.
• employer directly pays legal fees,
• salary $70,000+ and
• matter has unusual "twist" e.g.:
  • extreme time sensitivity,
  • moving directly from TN to green card, (See Question 7. "Will my Green Card application cause trouble when I renew my TN?")
  • employer/employee without resources or time to do paperwork,
  • employee does not clearly meet requirements, e.g.: no clear fit between degree and TN category, (See Question 6B. "Must college major match TN job?")
  • prior denial /negative immigration history or
  • high anxiety towards government authority.

If you meet these criterea I welcome your e-mail. Otherwise you will be better served by lawyers on my Rolodex.

There are several ways your lawyers can save you time, expense and trouble:

The process will probably go faster with legal counsel.

Legal counsel can make sure the application doesn't take any longer than it has to.

Failure to provide required documents in the first instance results in delays. An immigration application must contain all forms, the correct fee, and many supporting documents. The supporting documents are not all listed in the INS instructions. (There are no instructions---or even an application form---for the TN NAFTA permit.) If you are mailing an application INS will return the petition to you for your response. When you return the forms with additional information, it will again be in the administrative backlog. If you are applying at the port of entry, you may be turned away.

Your lawyer will monitor the correspondence from the INS. Notices often get lost in company mailrooms. If the notice is a request for information you may miss the response deadline. If it is an approval you may not know about it soon enough to make your plans.

Tiny mistakes can delay your application; others can be fatal.

An immigration expert can also apply for expeditious consideration of an application. This means that INS can take the application ahead of others in the backlog.

The bureaucratic procedures can be frustrating. We try to take much of this frustration out of the process for you. We will actually accompany you and walk you through your NAFTA border interview. Our goal is to reassure you when your case is strong and to help you present a stronger case where there are weak areas.

Over 90% of our past clients confirm that the time their case took, matched what their lawyer said it would take.

An immigration attorney will know of recent changes in the law, usually before they happen.

Those changes are often dramatic and go into effect before they become common knowledge. We are familiar with the case of an executive who filed for L-1 Intra-company Transfer status on his own. The INS granted L-1 status. Without knowing that the regulations on transferee status changed, he then filed the same application for permanent transferee status. INS denied the case, since the executive did not prepare his applications with the new regulations in mind.

To keep current on changes in immigration, immigration lawyers will use many resources. These include hard to find or expensive sources of current legal information. Informal networks of colleagues throughout the U.S. provide the latest updates. Our office maintains extensive checklists, lists of INS contacts, and large internal files of informally obtained legal materials. We are also linked by computer to immigration experts through the American Immigration Lawyer Association's Infonet---a private on-line service available only to attorney members.

Knowing the "law in the books" is not enough. An immigration attorney will spend time at frequent national and local immigration attorney's meetings to find out how INS actually applies the law.

Your lawyer must communicate these developments to you. 100% of our clients confirm that they were kept informed of relevant developments throughout the representation. 99% confirm that we explained the legal position clearly enough so that they could understand it.

A lawyer can coordinate applications of both employers and the employee who wishes to immigrate.

This can be important for immigration based on job offers. Our office represents both the employer and the employee in these matters. We must represent the interests of both parties. Therefore, we have the trust and cooperation of both. We can mediate and coordinate communication with the government. This makes a successful outcome likely. Employers should be more willing to deal with the immigration system with experienced counsel representing the employer's interests. This is especially important now, because INS imposes civil and criminal sanctions against employers who employ unauthorized employees.

An immigration attorney may provide you with a quicker or easier approach than the one you were following.

Thousands of Canadians have H-1 status. Most of them should be on the easier TN permit. With advance guidance, you can select the best permit for your needs.

Another example: Our office has represented Canadians who wished to apply for complicated work status. After a consultation, we discovered they were U.S. citizens through claims handed down from their parents.

An immigration expert can construct an application in a way that will keep open other options later.

For example, your attorney will draft temporary petitions very carefully so as not to disqualify you for permanent status later. A person can switch from temporary to permanent status, and even renew temporary status while waiting for permanent status. Nevertheless, such applications are tricky. Statements you unwittingly made in an earlier application can jeopardize these applications.

Even if it is possible to succeed without legal help, even a small risk of mistakes may be too great. Much is at stake in immigration applications. A person's professional future often depends on the ability to live and work in the United States. The future of that person's family also hinges on immigration. Business expansion plans often depend on key executives receiving immigration permission.

A lawyer will obtain immigration benefits carefully and legally.

This is extremely important to you. The INS can and will take away your immigration status if you made a "material misrepresentation" on one of your forms. Future immigration petitions from the employing company could be suspect. This can even happen many years after you have your status. In extreme cases, INS can bar you from entering the U.S. indefinitely, because of such misrepresentations. This bar would hold for even temporary visits as a tourist. In extreme cases, there are criminal penalties.

If you give accurate information, you should expect an application prepared by legal counsel to withstand any such challenges. This is because admission to the bar requires compliance with strict disciplinary standards.

The role of the lawyer is recognized by immigration authorities.

Here is a quote mutually agreed upon by the American Immigration Lawyers Association and the Visa Office of the U.S. Department of State:

There is an appropriate role for attorneys to play in the visa process; the involvement of an attorney in a visa case does not signify anything amiss. The majority of attorneys are aware of and adhere to the rules of the game. In the sometimes complex world of visas, a good attorney can prepare a case properly, weed out "bad" cases, and alert applicants to the risks of falsifying information presented to the consular officer. The attorney can help the consular office by organizing a case in a logical manner; by clarifying issues of concern; by avoiding duplication of effort (reducing interview time); and by providing the applicant with the necessary understanding of the intricacies of the visa process thereby easing the pressure on consular sections to provide information to the applicant.

Only as a last resort should you use an immigration consultant or a lawyer not admitted to practice U.S. law. Even if you think you cannot afford legal representation, you may be wrong. There are many pro bono and clinic legal programs for those with low income.

You could also work through your Canadian lawyer if that lawyer uses the counsel of an American immigration attorney. In this case, make sure that you are indeed working through a lawyer admitted to practice in your country. (Lawyers in our office regularly work with lawyers in Canada.) A U.S.-trained attorney can represent you personally at NAFTA port of entry interviews. He or she can file legal papers in federal courts if necessary. A lawyer trained in the U.S. can use unique principles of American law to construct petitions. He or she will also be trained to file appeals in U.S. courts and to negotiate with immigration officers. This is especially important when you must file your papers in the U.S., as opposed to filing at U.S. consulates abroad. Your U.S. attorney will be immune to any proposal to limit the practice of foreign attorneys and non-attorney representatives.

If you do intend to file your own applications, at least contact an immigration expert first. Determine the best immigration plan to follow.

Finally, whether you proceed with or without a lawyer---we wish you success!

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19. Do I need a local lawyer?

ANSWER: No.

Rather than finding a local lawyer, you should find an attorney practicing primarily in the business and professional area of immigration law. If you are hiring a Canadian, we suggest that your lawyer have substantial experience in filing L-1, TN and B-1 applications under the unique NAFTA procedures. You may wish to consider our experience in this regard.

U.S. immigration law is federal law. It is the same throughout the United States. This is true no matter what area of the United States may become your new home or geographical area of business.

A lawyer with substantial experience in U.S. immigration law has the competence to handle cases anywhere in the U.S. or before any U.S. consulate outside the U.S. This is especially true for businesses and professional immigration matters. This is because most of the business and professional petitions are now filed by mail in regional offices. It is impossible to file these petitions with these regional centers in person. 

Our clients have found that our proximity to two "Class A" Ports of Entry---the Niagara Falls Rainbow Bridge and the Buffalo/Ft. Erie Peace Bridge---is quite convenient. This is because of the North American Free Trade Agreement. Under NAFTA, you file applications for certain work visas at any Class A border Port of Entry. This is true whether you will be working in Buffalo, Miami, San Diego or Hawaii. We are able to accompany our clients to their border interviews on short notice.  To quote a leading immigration lawyer "Be certain that your immigration counsel is familiar with border crossing issues.  In my industry it seems as if lawyers who do not practice near border towns do not have a handle on the nuances of these business applications."

To successfully represent our clients nationally (most of our clients are not in the Buffalo area), we have structured our operations in a certain way:

• Internet support, from initial proposal to final approval notification.
• Smart use of e-mail.
• Knowledge of national immigration developments as they affect our clients through intense contact with colleagues in the U.S. and Canada.

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20. Can I make it go faster?

ANSWER: Yes.

This information is primarily for our clients, but may also be of interest to other readers.

One of the reasons clients retain us, is to quickly obtain work permits. Delays can destroy business and professional plans. They can also be very frustrating.

Surprisingly, most delays are not the government's fault. Many delays are under your control.

Getting Started

Clients often have good reasons for waiting before beginning this important step in their lives. Nevertheless, the process cannot start until we receive a Retainer Agreement.

Assembling Paperwork

There are often delays in sending our office documents we request from clients. Some clients have taken months or years. Again, there are often valid reasons for these delays. Unfortunately, we cannot compile the application until we receive the information. We do our best to comply with the estimated time we give you in our requirements letter. This assumes that you too, comply with your time frame for assembling information and documents. In this way we can plan and reserve time for your application.

We cannot prepare applications until we have all documents we need.

This is because the parts of an immigration application interrelate. We must make multiple photocopies of all items---even those of less significance. We must refer to every item in the exhibit list. We also explain the significance of many documents in a supporting letter we draft.

We must also actually review every document. Sometimes seemingly insignificant comments or dates can make a difference.

It is much more efficient to prepare the petition when all documents are in, rather than piecemeal. Efficiency keeps legal fees down. In this way, the person preparing the petition does not have to "come up to speed" twice---once when the petition is incomplete, and again when the final items are in. Detailed information concerning the applicant or the company is very easy for you to remember, but we must refresh our memories every time we work on your petition.

Waiting for a complete set of documents actually speeds things up. Time spent correcting mistakes is minimized. We only have to schedule your application in our project-planning sequence once.

Time in Our Office

You should also allow time for us to put the application together. We do our best to see that this will not cause delays, but we cannot avoid some delay. Although you do not see us at work, we spend much time compiling applications and exhibits to avoid further INS requests.

Federal agencies will sometimes return an application for more documents. This adds to the delay. This is why we request extensive documents from you to make the initial application as complete as possible. We will sometimes request more documents from you even after you have responded completely to our first request.

A new INS policy will not allow for serious mistakes---if a document is missing INS will deny the application rather than asking you for the missing piece of paper. This means that we would have to file all over again. The result: lost time and increased expense.

Government Processing Time

Once we file even a well-documented application, government agencies then do their part in making you wait. Normal processing times for simple applications range from one to four months. In some INS offices, processing time is one year! (Ask us for the current approximate processing time for your application.)

We have questioned the federal agencies about this. The response is "we are overworked and understaffed."

Special problems increase these processing times. The most frequent example is when a government agency loses track of your file. (This problem diminished when the INS consolidated adjudications into more efficient regional centers.)

How We Make it Go Faster

Using an immigration expert can minimize delays. See how our clients evaluate our efforts in this regard. An immigration practitioner can make sure the waiting doesn't take longer than it has to. The practitioner does this by sending in the most completely documented application possible. The practitioner can also minimize mistakes in the petitions.

Here are examples of how we minimize delays in our office:

• Lawyers do most of the work right on their computers. This avoids "steno pool hell."
• We help you select the quickest and easiest immigration permit before we begin. Canadians can take advantage of instant border adjudications. For example, many Canadians on H-1 status, could be on TN status. These Canadians could save time and paperwork by using the TN.
• Our office is equipped to handle the entire matter---from Retainer Agreement to Approval Notice---through the Internet.
• Our goal is to return our clients' e-mail and telephone calls within 24 hours.

An immigration lawyer can expedite applications ahead of processing times in certain urgent situations. After normal channels are exhausted we have access to special inquiry forms. We can work through and immigration lawyer/government liaison representatives.

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