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U.S. Immigration Law-Overview for Canadians

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• Introduction
• Primary Types Of Temporary Visas
• B-1, Temporary Visitor for Business
• H-1B, Temporary Professional Worker
• TN, Free Trade Professional
• L- 1 Status, Intracompany Transferee
• Permanent Residency ("The Green Card")
  • U.S. Employer as Sponsor
  • U.S. Relative as Sponsor
  • Maintaining Permanent Residency
• Summary

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Introduction to This Web Page

The free movement of people across the U.S. -Canada border is an important factor in the success of Canada-based companies in the U.S. It takes more than a smile and a wave, though; Canadians need work permits.

Immigration is the only U.S. legal barrier discriminating against Canadians. Whereas Canadians are free to make investments, acquire real property, form corporations, and establish businesses in the U.S., they are not free to enter the U.S. and operate their investments and businesses there. Thousands of Canadians are turned away at the border each year.

Unfortunately, many people who need to cross the border avoid applying for their proper immigration status, at least until a problem surfaces and they are denied entry. In other cases, U.S. companies are so reluctant to engage in immigration application procedures that they risk civil and criminal penalties by hiring Canadians who lack work permits.

Immigration planning is a necessary part of international business. Many major companies have moved toward flatter management structures, with fewer layers of managerial personnel. Companies that operate internationally can realize savings by staffing their operations with commuting executives who are capable of managing both U.S. and Canadian operations. With employees who can work on both sides of the border, a company can design its sales territories to reflect regional preferences. This ensures that customer-service needs are met immediately, without any need for long-distance travel.

Immigration planning is essential for modern cross-border businesses, whether personnel are involved in exporting, importing, attending meetings and conventions, or starting and running an operation. Whenever a new company is created, many start-up activities are extremely difficult to handle from a distance: contacting distributors, incorporating, obtaining business licenses, securing finances and leasing space, and so forth. At this critical stage, it is vital to have the necessary people in place at the new location. Those individuals who need to cross the border frequently should have the right type of pre-authorized immigration clearance--or the company will lose time and money.

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Primary Types of Temporary Visas

Everyone legally living in the United States fits into one of three categories: non-immigrants, immigrants and citizens. This division is uniform throughout the world, including Canada. It is much easier to implement an immigration plan if you keep these distinctions in mind, because immigration documents often refer to them. The majority of the non-citizen U.S. population is made up of non-immigrants (approximately 73 percent).

Millions of Canadian retirees, visitors, and business people are in the United States at any one time on temporary visitors' visas. Tens of thousands of others are here on various temporary business visas.

Non-immigrants in the United States usually require a U.S. visa of some type. Whether this visa is for business, pleasure, or other purposes, it expires at some predesignated date. Unless the visa is renewed, the holder must leave the United States. Temporary business visas available include:

• B-1, Temporary Visitor for Business;
• H- 1 B, Temporary Professional Worker;
• TN, Free Trade Professional; and
• L-1, Intracompany Transferee.

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B-1 Status : Temporary Visitor for Business

Choices: Joe Grasmick shows a client the three ways to get B-1 status.

The B-1 is usable only for international commercial purposes. It applies only to those businesses that export goods to the U.S. and have no operations in the U.S.

There are three ways to get a B-1. The first is to show up at the border and state the purpose of your visit--the smile-and-wave approach. Another is to have your company or an immigration specialist prepare a letter on your company letterhead, explaining the purpose of your travel in greater detail. Finally, you can arrange for an "I-94--Arrival and Departure Record." (See a photograph of an actual I-94 form.) This form is proof that you have been examined by an immigration officer at a port of entry and found qualified for business-visitor status. The I-94 should make subsequent entries easier, because you have already proven your case to the U.S. Immigration and Naturalization Service (INS).

B-1 Requirements

• Must leave the United States when work is completed
• Must perform services for non- U.S. employer
• Must be compensated from source outside the United States
• Must be entering to perform acceptable B- 1 duties
• Ownership of the employing company must be located outside of the U.S.

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H-1B Status, Temporary Professional Worker

A privileged group of Canadians can quickly obtain eitherH- 1B or TN (Trade NAFTA) status even if U.S. workers are available to do their types of jobs. H-1 status has existed for many years and is available to Canadian citizens and others. Canadians who qualify for TN status usually also qualify for H-1B status. (TN status discussed on next section). To qualify for TN status "Temporary Professional," you must be coming to the U.S. to work in a specialty occupation, defined by law.

The H- 1B non-immigrant category requires an intent by the employer (the petitioner) and the employee (the beneficiary) that the placement be temporary. If either side fails to show this temporary intent, status will be denied. It is not necessary for the actual position to be temporary; employers need only demonstrate that the placement of the non-U.S. citizen in that position is to be temporary. Both the INS and the State Department recognize a concept known as "dual intent." You can simultaneously intend to do temporary work now and at some later date work permanently. An H-1B employee need not maintain a foreign residence.

H-1B Requirements

• Must leave the United States when work is completed
• Must qualify as a professional
• Must acquire a U.S. license, if one required by the state in which employment is located
• Must demonstrate need for high-level employee
• Petition must contain Labor Condition Application approved by the Department of Labor

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TN Status, Free Trade Professional

Fortunately, Canadians, like Mexicans, are accorded a special status under the North American Free Trade Agreement. Canadians are now able to obtain a temporary non-immigrant visa called the TN (Trade NAFTA). This work permit can be obtained, with no application form and minimum paperwork, within minutes of arriving at a port of entry. The filing fee is $50 U.S., and the TN is valid for a period of one year.

To qualify for a "TN--Free Trade Professional," you must be coming to the U.S. to work in one of the professions listed in the NAFTA agreement. Most of the TN professions require a baccalaureate degree. The list includes some jobs that could not qualify for work permits before (even in advance), including management consultants, technicians, and claim adjusters.

At this time, there is no limit on the number of times an individual can renew a TN visa. The TN is, however, a temporary visa. With each application, you must state that it is your intention to remain in the U.S. temporarily. Therefore, as a practical matter, it may not be feasible to apply for TNs year after year. If you need to work in the U.S. for many years, you should consider another visa option. We feel, however, that at some point in the future, the INS will no longer renew TN status for holders.

TN-1 Requirements

• Must be a Canadian or Mexican citizen
• Must provide evidence that the intended U.S. business activity and the applicant qualify under Schedule 2 of NAFTA
• Must provide proof of possession of a license to practice profession in United States, if one is necessary in the U.S. state where employment is located
• Must provide documentation of remuneration arrangements with U.S. employer
• U.S. employment must be temporary
• No strike or lockout

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L-1 Status: Intra-Company Transferee

To qualify for the L- 1, or the intra-company transferee visa, you must be a high-level employee of the Canadian company for one year anytime in the past three years; your company must have a U.S. branch, affiliate, or subsidiary with at least a common 50 percent ownership; and the U.S. entity must have a lease or deed for its physical premises. L- I status allows a Canadian to live and work in the U.S. for a maximum of seven years.

L-1 Requirements

• The Canadian company must be related to the U.S. company in some specific way
• Company must continue ongoing operations outside the United States
• Alien employee must have held an executive or managerial position, or one requiring specialized knowledge with the foreign company, for one full year within the three years immediately preceding application date
• Employee must have the intent and qualifications to immediately perform executive, managerial, or specialized knowledge function at U.S. location
• Both the employee and the employer must intend for the U.S. transfer to be temporary
• U.S. employer must have U.S. premises
• No strike or lockout

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Permanent Residency ("The Green Card")

VICTORY: President of a construction equipment manufacturing firm (l) and Joe Grasmick (r) celebrate a hard-earned I-140 approval. This application was for a difficult National Interest Waiver Green Card.

The non-immigrant business visas described in this pamphlet are only for temporary employment. The alternative is to obtain permanent working status. The most common type of permanent working status is permanent residency. Permanent resident status (often called "having a green card") allows a person from another country to live and work in the United States with no time limitation. (See a photograph of an actual green card.)

Here are three ways to get a green card:

• Through an offer of permanent employment by a U.S. employer.
• Through the sponsorship of a relative in the United States who is a citizen or holds a green card.
• Through an investment of one million dollars or more which creates employment for Americans or other situations where an extraordinary or exceptional person need not have a job offer in the United States.

The first two ways are the most common ways to get a green card. They are summarized below:

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U.S. Employer as Sponsor

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U.S. Relative As Sponsor

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Maintaining Permanent Residency

The Immigration and Naturalization Service (INS) can invalidate a person's permanent resident status at any time if it feels that the person has "abandoned" his or her U.S. residence.

The following are ways in which people can avoid this by confirming their intention to retain their U.S. residency. Some of these might seem insignificant, but all are factors useful in showing ties to the U. S.

• Do not leave the U.S. for more than one year
• File U.S. resident and U.S. state resident income tax returns
• Have U.S. plates on automobile
• Maintain a U.S. domicile
• Declare self as a U.S. resident when crossing the border
• Establish yourself in as many ways possible to demonstrate your intent to stay in the US. (e.g. obtain US. driver's license, establish credit and memberships with various organizations, purchase property, etc.)

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Summary

Most Canadians are in the enviable position of having several options with regard to getting a visa. After you, or your employee, determine what options you are qualified for, the next step is to select the best category of visa within that option. To do that, consider the following variables: For how long is the visa valid? Which option requires the least paperwork? And which option requires the least corporate restructuring of your company in order to qualify? Armed with a good immigration plan, your key employees will never be barred from timely access to their U.S. working place.

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