Rated "AV" (a lawyer's highest possible rating) by Martindale-Hubbel

Grasmick's U.S. Business Immigration News for Canadians-1997 Archives, Jan.-June

• TN Statistics---Nurses Lead
• Immigration Carrot Gives Software Company Hiring Edge
• Study Life-threatening Disease and Get Quick Green Card?
• New Canada/U.S. Financial Website
• Sales Manager Granted Border L-1A

• TD Spouses Now Have Own Website
• New Legal Fees-Some Lower, Some Higher
• How New Law Affects One Canadian Company
• INS Gives Quick Green Cards to Engineer, Programmer-Analyst, Scientist and Physician
• TN Alert-Health Professionals

• Problems at Vancouver?
• TN Extension Approved in Spite of Pending Green Card
• Employer Joins I-94 Tug of War
• Flip Through my Rolodex
• Forum Exceeds Expectations

• New Canada to U.S. Forum
• You're on a LookSmart Editor's Choice and a Netguide Gold Site
• Kinks Showing Links to Canada
• Big Barrier for Health Care Workers?
• Get Green Card for the Spouse

• TD for Non-NAFTA Sweetheart
• I'll Be Out in January
• New Law Hits Canadians
• TN-Medical Technologist---Hospital HR Horror Story
• Give Up Citizenship or Green Card, Face "Tax Hell"

• U.S. Employers Willing to Hire Canadians
• Tips for Canadian Journalists
• Systems Analyst Confounded by NAFTA's Boolean Logic
• Can TN Teachers Teach at Elementary Schools?
• Lots of Courses But No Degree? You Can Still Get a TN

• Current News (Large file.)

Turn this page into a double-sided digest size booklet. Give to other decision makers in your company or to your prospective employer. Link will take you to an independent Website for a software download. (5 minutes at 28.8k)

Return to the top of this page

TN Statistics---Nurses Lead

(May 26, 1997)

Ever wonder how many Canadians get immigration work permits?

Here are statistics for one year---1995:

SOURCE: Statistics Division, U.S. Immigration and Naturalization Service. Courtesy of Alan Diner, Greenberg, Trister & Turner

Nurses use the TN the most at 5,233 entries.

Here are the most popular TN-1 professions:

Return to the top of this page

Immigration Carrot Gives Software Company Hiring Edge

(May 26, 1997)

Hi-tech employers find they are competing for talent.

Nowhere is this more prevalent than in the computer industry.

We are helping an employer who is courting a top systems analyst for a job in the electrical industry. The prospective employer is crucial to the employer's key business expansion.

Working with our office, the employer offered the candidate a quick work permit---the TN. The employee can actually have the TN in hand before giving notice at his present job. Other potential suitors (including the present employer!) were unaware of this border-specific permit.

The employer could also offer our services to escort the employee through the often stressful application procedures. More significant, we can offer the employee a "fast-track" Green Card with the National Interest Waiver. See our FAQ question "11. Can I use the National Interest Waiver to avoid an individual Labor Certification for my Green Card?" for details. The Green Card is a powerful fringe benefit---a benefit much more valuable than the cost. (See the FAQ question "14. Why should we go through the hassle of hiring a Canadian for the job?")

Although the employee has not yet decided, this offer will be difficult to refuse! Not only is immigration a tangible benefit, but it speaks to the serious long-term commitment of the employer.

E-mail me and I will help you prepare attractive offers for crucial hires.

Return to the top of this page

Study Life-threatening Disease and Get Quick Green Card?

(May 26, 1997)

"Clearly, no medical researcher inherently or automatically qualifies for a waiver of the job offer requirement in the national interest, simply by virtue of studying a life-threatening disease."

These are the words of the Administrative Appeals Unit (AAU)of the INS.

The AAU said this, but still confirmed that a scientist at a hospital and research facility does qualify for the fast track Green Card.

We describe the National Interest Waiver Green Cards at the FAQ. This quick path to permanent residency is important. Otherwise, waits under the standard labor certification procedures can be up to three years.

Here are excerpts from the opinion. I hope this information helps you decide whether the National Interest Waiver is for you:

Clearly, no medical researcher inherently or automatically qualifies for a waiver of the job offer requirement in the national interest, simply by virtue of studying a life-threatening disease; for example, the Service cannot grant waivers to every scientist performing cancer research. However, it must also be conceded that the national interest is served by truly major, pioneering research into dangerous diseases. In this case, the beneficiary appears to be at the forefront of research into histiocytosis.
. . .
While the beneficiary's field of expertise is admittedly narrow and arcane from the standpoint of a layperson, the petitioner has established that this beneficiary enjoys an international reputation in her field: physicians...have sought her advice and consultation. The beneficiary appears to have engaged in published research to a greater extent that would be expected by a typical practitioner of her profession. Witnesses have attested to the beneficiary's unique talents in the field of microbiology as well as in the technical aspects of electron microscopy and imaging.

Many people needlessly pursue the onerous individual labor certification route. Contact me if you have a prospective Canadian employee. We can assess eligibility for a quicker alternative.

Many thanks to Gerry Seipp, partner in the immigration law firm of Serotte, Reich, Seipp and Kenmore. Gerry faxed this case to help with a National Interest Waiver case we are preparing.

Return to the top of this page

New Canada/U.S. Financial Website

(May 26, 1997)

A new Website adds valuable material to the scarce Internet resources on Canada/U.S. topics.

Serbinski Weinberg, Ltd. sponsors an excellent resource for cross-border financial topics.

Serbinski Weinberg are international income tax advisors and consultants. They specialize in international tax planning for U.S. expatriates, tax return preparation, relocation planning, advice for Canadians working in the U.S.A. and representation before income tax authorities in the United States and Canada. They provide services to individual clients, and to the Accounting & Legal professions.

Clients of that firm operate in a variety of industry, service, government, financial and non profit sectors. The Website's focus is on tax planning and financial control for owner managed businesses, corporations, partnerships and sole proprietorships. Services to individuals involves comprehensive income tax and estate planning, specializing in professional sales personnel and self employed individuals.

Mark T. Serbinski is a principal of the firm.

He attended the University of Western Ontario, School of Business Administration, in London, Ontario, Canada where he obtained an undergraduate degree in Business Administration in 1976. Then moving back to his family home of Toronto, Ontario, he attended the Graduate School of Business Administration at York University, where he obtained a Masters degree in Business Administration in 1978, and concurrently qualified as a Chartered Accountant, licensed to practice in the Province of Ontario.

After eighteen years of public practice, Mark qualified as a Certified Public Accountant, and became licensed to practice in the State of Illinois.

Some readers may recognize Mark as a regular contributor to our forum. Mark recently visited us in Buffalo. I can attest to his professionalism and enthusiasm.

Topics on his Website include:

• IT Contractors in the U.S.
• RRSP in USA
• Residence Sale
• Dual Status Year
• Canadians Working in the U.S.

The site also contains a forum. I encourage readers to post their financial questions on that Newsgroup.

Return to the top of this page

Sales Manager Granted Border L-1A

(May 26, 1997)

We just received approval of a border L-1A for a National Sales Manager. Before retaining our office the manager had been turned away from the border for insufficient documentation. As a result he was forced to work on U.S. accounts from Canada. Since sales and marketing often requires face-to-face contact, this was not an ideal situation.

Sales managers face special L-1 challenges. Appeals cases require documents showing:

• an intervening layer of supervision between beneficiary and sales personnel
• those beneficiary supervises must exercise discretionary authority within his or her own sales region
• cannot manage sales accounts---must manage staff of personnel

Accompanying these formal rules is an unwritten rule: you must convince the INS that your sales manager is not the type that "sells vacuum cleaners from door to door".

Sales people selling only Canadian products may not need an L-1A. A B-1 may suffice.

Contact us before you send your sales managers to the border. Although we secured a happy outcome here, cases are easier when first presented at their best. Also, you may wish to consider the personal border representation we provide.

Return to the top of this page

TD Spouses Now Have Own Website

(May 13, 1997)

See a new Webpage about NAFTA immigration at:
http://www.pagemastersinc.com/na fta/naftalnk.htm Interesting NAFTA and Related Internet Web Sites.

This page makes a new contribution to the NAFTA literature. It is a serious attempt to include links that have concrete answers to the dilemmas NAFTA families encounter. The author's main "cause" is convincing the NAFTA Working Group to give work permission to TD NAFTA dependents. Astute readers will identify the author as one of our own Newsgroup members!

Return to the top of this page

New Legal Fees-Some Lower, Some Higher

(May 13, 1997)

We have made substantial changes to our legal fee structure. The new FAQ about legal fees and Retainer Agreement reflects these changes.

Here are some of the changes:

• We now use fixed (flat) fees for most matters. Many clients have suggested this over the years. Barring unforseen circumstances, our clients can actually budget legal fees.
• Fees for temporary permits are reduced. Use of the Internet and use of co-counsel have increased efficiency.
• Fees for Green Cards are the same or higher. This reflects additional time we must spend on Green Card cases. The government is taking longer to decide cases, requiring more efforts over longer time. INS is also raising standards, requiring more legal work to assure an approval.

Many readers who send me e-mail are surprised to learn that our legal fees are published on our Website. I do this because client expectations regarding fees should be accurate from the start. It also speeds up the immigration process---with the facts at hand you can make a quick decision regarding legal representation.

Return to the top of this page

How New Law Affects One Canadian Company

(May 13, 1997)

The Director of Human Resources of a well-known Ontario company asked me for a "plain English" legal opinion. He wanted to know how the new immigration rules change the way the company has been doing business in the U.S.

I'm pleased to share excerpts from the opinion with you.

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

Writer's direct telephone: 716.842.3104

VIA FAX

Thank you for your recent telephone call.

During that call you requested a brief update on U.S. immigration law, especially as it may affect your managers.

We should watch for two effects of the law:

• Six months spent illegally in the U.S. results in a three-year bar for future U.S. entry. Per the Immigration Service (INS) this includes "entering into an activity that violates the terms or conditions of status. For example . . . unauthorized employment." (One illegal year = a ten-year bar.)
• INS enforcement and investigation personnel have been doubled. The new law empowers Border officials to make summary judgements previously made only by immigration judges. This means that it is now more likely that INS will find and follow up on violations of their rules.

This means that we should be extra careful with business trips (B-1) to the U.S. Should managers be doing "work," they could fall under the new law. The penalty for six months of unauthorized employment is a three-year bar to entering the U.S. for any purpose at all.

Also note that companies are quick to acquire reputations at the border. One employee's experience at the border can influence another's.

I have attached a report that describes what one can and cannot do on B-1 status. (I have more detailed information I can give you upon your request.)

Here are some quick guidelines concerning B-1 visitors for business:

• People on B-1 status can come into the country to directly sell a Canadian product to a customer. This would include trade show activities.
• If there is even one U.S. made product in the product mix, the INS will consider the person disqualified for B-1 status. Therefore, if a person enters as a business visitor, and proceeds to market a U.S. made product, he or she violates the conditions of status.
• If a person's U.S. role is more managing people than selling a product, consider a work permit to resolve any doubts. (E.g.,: L-1, TN) This is an issue to discuss with your marketing management.

Even before this law, we have always taken measures to assure that your managers can freely and legally do business in the U.S. Let us continue these efforts.

I hope this information is useful.

Sincerely,

LAW OFFICE OF JOSEPH C. GRASMICK

Joseph C. Grasmick

JCG:cg
enc.

Send me an e-mail if your company needs a similar customized assessment.

Return to the top of this page

INS Gives Quick Green Cards to Engineer, Programmer-Analyst, Scientist and Physician

(May 13, 1997)

The National Interest Green Card is a quick way to permanent residency. It can cut processing time by as much as one or two years. Canadians and their families can often apply for interim work and travel permission four to eight weeks after filing the first applications.

You can find more information about the National Interest Waiver at our FAQ. You can also search this site for information.

Here are examples of cases recently approved by the INS.

Electrical Engineer

The Nebraska Service Center approved a national interest petition filed by our office on behalf of an Electrical Engineer. The engineer will contribute to the safety of U.S. workers and the public. He will also help create U.S. jobs.

Here were factors INS considered important in their adjudication:

• We provided evidence of a projected 10,000 lives saved and 100,000 injuries prevented from railroad safety devices developed by our client.
• He develops leading edge, vs. established technology. His projects are "firsts".
• He is one of the few engineers in the world with experience in both 1) a certain area of microprocessor technology, and 2) a certain branch of transportation engineering.
• He is an engineering manager, in charge of leading teams of engineers from different disciplines.

Here are four other cases courtesy of the American Immigration Lawyers Association and immigration lawyer Sheela Murthy:

Biomedical Engineer

The Vermont Service Center approved a national interest petition for a Biomedical Engineer. Beneficiary has a Ph.D. in Biomedical Engineering. The beneficiary's work involves the identification of promising technologies at government entities (DOE, NASA, DOD, etc.) and defense contractors, and facilitating the assimilation of such technologies into the Medical Rehabilitation Model to benefit individuals with disabilities. The beneficiary's research focuses on Virtual Reality (VR) simulation technology in diagnostic, therapeutic, and educational applications facilitate rehabilitation of individuals who have suffered neurological illnesses and injuries.

Physician-Researcher

The Vermont Service Center approved a national interest waiver petition for a Post Doctoral Research Fellow. The national interest argument was based on the beneficiary's outstanding, original anesthesia and preoperative medicine research. The research promises to be of great future benefit to U.S. health care, while at the same time improving the economy and the working conditions, education and other programs of U.S. workers.

Programmer-Analyst

The California Service Center approved a national interest waiver petition for a programmer/analyst working in the field of information retrieval.

The beneficiary's work focuses on retrieving information which involves disposal of radioactive waste. The beneficiary's expertise will assist scientists in finding a safe and suitable environment to store radioactive material, which, if disposed of in an unsuitable environment, could cause health hazards. The information retrieved by the beneficiary will also help scientists to collect and analyze detailed environmental and geological data from above ground and from underground improving the health care and welfare of the U.S.

Research Scientist

The Texas Service Center approved a national interest petition for a Research Scientist working in the area of immunology. The beneficiary's research focuses on the most prevalent arthritic and musculoskeletal disorders present in the U.S. population.

The national interest argument was based on improving U.S. health care and U.S. economy, while simultaneously improving the working conditions, education and various programs of U.S. workers.

Contact me if you believe you have an employee who qualifies for this "fast track" Green Card.

Return to the top of this page

TN Alert-Health Professionals

(March 4, 1997)

Today we filed a health professional TN under the new rules. ("Big Barrier for Health Care Workers?" February 11, 1997) This was the first such application at this major port of entry. Here's some information I would like to share with you:

The good news:

• INS does not require a separate waiver application or fee for TN entry. Such an application would add paperwork and time to the procedures.

The bad news:

• INS only gives health professionals 6 months' status single entry, vs. the normal 12 months multiple entry.

This can affect your timing and travel plans, especially if you are going for a Green Card and need the full year. Bring this topic up with your immigration lawyer.

This interpretation can change. Review this new page often for developments.

We are grateful to the law firm of Serotte, Reich, Seipp and Kenmore for this information.

Return to the top of this page

Problems at Vancouver?

(March 3, 1997)

I've just received a flurry of reports from Vancouver.

Here's a sample:

• "They say there's no such engineer as a "computer engineer."
• "I was denied TN entry because I applied for a Green Card."
• "They're now taking three weeks to pre-clear a TN application."
• "They turned me back because I was missing paperwork."
• "I showed an approved TN I-94, they put me into secondary inspection for questioning, accused me of fraud and then wrote "management consultant" on the I- 94."

Perhaps this is related to a staff change at INS Preflight Clearance...merely a temporary setback? Or perhaps I've just received a lot of e-mail from Vancouver lately?

One reader has an explanation, posted to our forum. Contribute to the thread if you have any news.

Watch this Newsletter and the forum for developments. Consult your immigration lawyer before applying there. Be careful when traveling via that airport.

Return to the top of this page

TN Extension Approved in Spite of Pending Green Card

(March 3, 1997)

Our office just received approval of a TN extension.

Normally not unusual, but this approval was special. Our client, an engineer, received this approval in spite of having an I-140 permanent petition on file with INS.

This shows that INS recognizes the concept of dual intent for TN's even if not written into the regulations. Readers should think twice before entering a romance with an H-1 permit just to ease the transition to a Green Card.

Of course we needed to take special steps to maximize approval under these circumstances. . .steps described in the FAQ.

This should alleviate fears held by TN holders.

Return to the top of this page

Employer Joins I-94 Tug of War

(March 3, 1997)

This Newsletter has contained various articles about how some airlines take Canadians' I-94 work permits upon departure from the U.S.

A reader describes similar difficulties: his employer removed the I-94 from the approval notice:

Using your Handbook, I was able to extend my TN-1 visa for another year. However, I have a question. My employer presented me with what appears to be the original Form I-797 Notice of Action (Approval), but there is no I-94 stub on it. It has already been torn off. So my employer keeps everything (I made copies). Is this normal? I have a photocopy showing what it used to look like whole. I did include an additional money order for $6 with my visa extension petition, thinking they might charge for a new I-94 even though it was not explicitly required, but that was returned to me, saying it was not needed.

Thanks for letting me know the good news!

You should take the original I-94 and staple it to your passport. You need it to get in and out of the country.

I suggest the employer keep a photocopy and attach it to their I-9 form.

One of the advantages of legal representation is that your lawyer will coordinate the paperwork between you and the employer...so that you do not find yourself stuck on the wrong side of the border some day.

Incidently, you may wish to review the articles at our newsletter [archives] concerning the "I-94 Tug of War". Some airlines are not familiar with Canadians, and try to take the I-94 before you leave. As a Canadian, traveling back and forth to Canada, you can keep the same I-94 for multiple entries.

By the way, once you get the green card you don't have to worry about renewals anymore.

Would you like me to carry the ball to get the green card?

I would be happy to speak with your employer to help make this happen. This is often useful to assure the employer concerning your eligibility and the time it will take. (In the meantime I can also discuss the proper I-94/I-9 procedures.)

Employers are often unaware of the special benefits NAFTA gives Canadians. It is also useful to have the employer agree with and support the particular immigration strategy needed. This way we can maximize the chance that the employer will see the matter through to a happy end.

Please have your employer call me at 716.842.3104. Please let me know in advance, who will be calling so I can be prepared. Be sure to check afterwards, so you can be up to speed and we can coordinate our action.

At this point you may wish to review the FAQ Question: "How can I convince the employer to sponsor me?" (if you haven't already). The answer to that question can help you negotiate immigration benefits with employers.

Return to the top of this page

Flip Through my Rolodex

(March 3, 1997)

"Build a good Rolodex. Contacts make all the difference."
---John M. Capozzi, Why Climb The Corporate Ladder When You Can Take The Elevator

Help yourself to my Rolodex. . .just updated. Flip through it at will.

That Web page contains contacts I have worked with for over fifteen years. Keep that page on your hotlist for a ready source of experts. You can have the same resource I use daily to assist my clients.

Return to the top of this page

Forum Exceeds Expectations

(March 3, 1997)

Many thanks to readers participating in the new Canada to U.S. Business Immigration Newsgroup.

Your response is impressive. In the few weeks on-line the forum has received 170 quality messages. Messages have been from lawyers and non- lawyers.

I'm personally impressed by your high level of knowledge and concern.

Here are some of the new threads:

• TN Ind. Contractor-Management Consultant-Real Estate Broker
• Computer Games Artist-English Education-Graphic Design?
• TN Renewal - Same Employer, Different Job Description
• Offer from Sweetgrass Montana INS to pre-check paperwork ?
• INS Green Card Medicals-Blood Test Warning
• I-129/539 questions
• Travel to Mexico With I-94---Will I Get Back In?
• TN-Eco-tourism management-Halifax POE for US Virgin Islands?
• TN-1 applicant, duties and taxes on Jewelry
• 1st year on TN-1 : Do I file 2 tax returns?
• Credit History-How to Build While on TN-1
• TN or H-1 to Green card Status..Which is better?
• Free-lancing on the Side While on TN

If you haven't already tried this discussion group, why not take a peek now?

Return to the top of this page

New Canada to U.S. Forum

Check out our new web-based discussion group: The Canada to U.S. Business Immigration Newsgroup. Feel free to lurk, respond to a message or start a new thread.

This forum supplements the general Usenet immigration forums alt.visa.us and misc.immigration.usa.

I started this forum because the general Usenet groups have two weaknesses:

• The Canada to U.S. questions are hard to find on Usenet. They are overwhelmed by numerous messages about non-Canadian concerns. (Immigration is a very broad subject!)
• The relevant messages disappear before I can read them. Usenet server space is limited.

Usenet groups are quite useful (I read them daily). Nevertheless, our forum gives in-depth information on our topic.

I like things simple. This is why I publicize an URL leading you directly to the messages:

http://www.focuspoint.com/grasmic k/nonmembers

Nevertheless, if you would like to take advantage of the full features of the newsgroup (including Java, Frames and display options) you can sign up for "membership":

http://www.focuspoint.com

Here is an example of some threads already on the forum:

• Canadian landed immigrants and work in the US
• Border Crossing Card question
• H-4 --> TN visa conversion & Social Security Card
• TN before work starts?- Alberta/Montana border
• Class project: How do Immigration Inspectors Treat Visitors?
• Getting a New TN Without Going to the Border
• Family following later - how do they get their TD's?
• TN or H-1 with Green Card Application? "Dual Intent"
• TN-1 / TD renewal-Fees & Forms?
• TN before start of work
• Website designer, 9 mth contract, no Bachelor
• TN Systems Analyst-Which DOT Description?
• Legal Advice ... as in "I am *not* a lawyer"
• Travel restrictions During Green Card & L-1 Renewal?
• TN application reference letters-old employer not around
• How Early Should I file the I-129 TN renewal?
• Immigration TV-New Immigration Law
• US Green card experiences in Montreal???
• Who Benefits More - Canada or US?
• Amended TN at Mexican/Canadian border?
• How long for Green Card from TN ?
• Want to work as Bond Trader , B.Sc. M.B.A., TN?
• Green card sponsorship by employer
• Major Hassles With TN Visa at Vancouver!-Paperwork
• Canadian Landed Immigrants, H-1, and Landed Status
• Anthropologist as TN Management Consultant?
• Canadians in US - Citizenship?
• Pilot Services/Training Business as Visitor or Green Card

Return to the top of this page

You're on a LookSmart Editor's Choice and a Netguide Gold Site

(February 11, 1997)

Two Web review services say this about our site:

LookSmart...a subsidiary of The Reader's Digest...is delighted to award you The Editor's Choice Award...We have viewed literally over a million websites to select the 110,000+ chosen to meet our standards.

Netguide has selected your site as a Gold Site---one of the best on the Web...NetGuide has screened over 100,000 URLs and reviewed more than 50,000 sites and our Gold Award goes to only 15,000 of the Web's best sites.

I hope the quality of our legal services matches and exceeds these statistics!

While we're bragging, here's a comment by Jim Carroll, coauthor of The Canadian Internet Handbook as quoted in The Hamilton Spectator:

One example of a person using the Internet thoughtfully...is American lawyer Joseph C. Grasmick...a wealth of information about legal requirements for Canadians wanting to do business in the U.S...if you put something of value on the net, people will keep coming back.

A management consultant in one of the "Big Six" consulting firms wrote us with:

Thanks for all your help. I managed to easily acquire the TN visa and I appreciate your guidance and counsel. When it will be time for the green card---you will be the first person I contact!

Return to the top of this page

Kinks Showing Links to Canada

(February 11, 1997)

All Canadians coming to the U.S. temporary should be prepared to show their links to Canada. That is because non-immigrants must intend to remain in the U.S. temporarily. Otherwise INS may feel you intend to remain permanently in the U.S. and deny entry.

Traditional links include a Canadian driver's licence, Canadian insurance policies and property ownership.

Gary Dare points out a few difficulties in showing these links:

Just a few thoughts on what complications your Canadian clients might see in demonstrating home ties...

• Many Canadian provinces prohibit holding their driver's licence even if you have one from another province or American State.
• Health insurance lapses after three months out of province.
• Tax liabilities if you take over your retired parents' title to the family house. (A move that would otherwise yield higher pension payments to your parents, otherwise.)

Gary L. Daregld@ripco.com

Return to the top of this page

Big Barrier for Health Care Workers?

(February 11, 1997)

Hospital HR managers take notice. The new immigration law requires more red tape for health care workers.

This could result in a new licensing requirement for Canadian health professionals. Health workers who do not now need a license to work in the U.S. may now need one---just to satisfy immigration!

The effect on Canadian TN's is not yet clear.

Here is actual text from the law:

Any alien who seeks to enter the U.S. for the purpose of performing labor as a health care worker, other than a physician, is inadmissible unless the alien presents...a certificate from an...independent credentialing organization...verifying that...the alien's education, training, license, and experience...are comparable with that required for an American health-care worker of the same type;

if a majority of states licensing the profession in which the alien intends to work recognize a test predicting the success on the profession's licensing or certification examination, the alien has passed such a test or has passed such an examination.

This is particularly disturbing for Canadians under NAFTA since the congressional conference report leaves no doubt about congressional intent on the issue. The report states:

Notwithstanding any international trade agreements or treaties a health care worker subject to prescreening under this section should include any alien seeking an immigrant or nonimmigrant visa as nurse, physical therapist, occupational therapist, speech-language pathologist, medical technologist and technician, and physician assistant."

The list of specific professions affected is left to the agencies to identify in forthcoming regulations.

The INS has agreed to waive this requirement for now. The government agencies claim they need more time to put together the rules to implement the law.

Our TN clients in the health industry should check this newsletter often. (Perhaps it's time for us to get your Green Card?)

Return to the top of this page

Get Green Card for Spouse

(February 11, 1997)

Our Green Carded client, Division CEO of a publicly traded company, recently went on a pleasure cruise with his wife.

He had never "bothered" to get a Green Card for his wife. "Joe, I've been using the Green Card for ten years with no problem."

The cruise had an unpleasant finish.

Upon docking, an INS inspector ordered him to report to the nearest INS office or face imprisonment.

Reason: "How can you live in the U.S. on a Green Card, while your wife lives in Canada without one?"

INS border inspectors have this item on their mental checklist:

"____One spouse with Green Card + another without = ask a lot of questions."

Green Card holders must always intend to reside in the U.S. (See the FAQ.) Inspectors suspect Green Card holders do not have this intent if their spouse does not have a Green Card.

For many clients there are substantial tax advantages to split spousal residency.

Solutions:

• Make sure the Green Card holder maintains the requisite links to the U.S. per the FAQ.
• Consider having our office apply for a Returning Resident permit for your employees to remove all doubts.
• Get U.S. citizenship. Citizens can reside anywhere.
• Get a Green Card for the spouse. This is quick if the marriage existed when your employee received the Green Card. It can take much longer if the marriage was subsequent---you should get started now.

Return to the top of this page

TD for Non-NAFTA Sweetheart

(February 11, 1997)

Speaking of spouses, what if the spouse isn't Canadian?

One readers asks

If a person has a TN permit, and plans to marry someone from a non-NAFTA country, can the spouse get a TD? Or does that person first need to get Canadian landed status and then a TD? Or is there another procedure?

Non-Canadian citizen spouses of TN's can get TD status, but will require a passport visa first. They need to get the passport visa at a U.S. Consulate.

Landed immigrants of Canada from certain countries do not need passport visas, but other landed immigrants do. The list is at the FAQ.

Issues concerning immigration for spouses should concern the HR professional.

Forbes ASAP (October 7, 1996) asked two leading headhunters, John Thompson of Heidrick & Struggles and David Beirne of Ramsey/Beire Associates: "What is the biggest obstacle in convincing a candidate to move?"

The answer: The spouse with a career who's not easily relocated.

The FAQ has much information on accompanying spouses including options for working spouses.

Return to the top of this page

I'll Be Out in January

(January 5, 1997)

I will be on vacation in January.

In my absence Andrew Lipkind and members of Serotte, Reich, Seipp and Kenmore will attend to your needs.

I will be a bit out of touch---even from the Internet! I will be on a four-person team attempting an ascent of Cerro Mercedario. Mercedario is a 6,770 meter (22,000'+) mountain in the Argentine Andes.

Return to the top of this page

New Law Hits Canadians

(January 5, 1997)

The new immigration law has a dramatic impact on illegal immigrants.

Most changes do not affect business immigration.

A few do.

Here are some ways to stay on the right side of the law:

• Make sure you get and renew your work permits on time. If you are in the U.S. unlawfully (not hard to do) for six months you can be barred from the U.S. for three years. Stay here without the right permit for a year and it's a ten year bar! There are new civil penalties too. The number of INS officials investigating overstays is increased by 300.
• Use professional help. There are new 5-15 year criminal penalties (AKA "jail") for false statements in applications. Your application must have a "reasonable basis in law or fact" or it's a criminal act. Employers and employees are subject. See the FAQ for information about how and why you should seek border counsel.
• Contact us before renouncing your citizenship. People who give up citizenship for tax reasons can be barred from ever coming to the U.S.

Here are situations I see frequently. Each can trigger these sanctions:

• A TN changes employers and fails to make a timely application to amend TN status. (You can't change until you receive the approval.)
• A retired snowbird decides not to go back to Canada this year.
• A person discover she is a dual U.S./Canadian citizen. On advice of her accountant, she goes to the Consulate to renounce her U.S. citizenship.
• At the border, a job seeker states the purpose of the trip as "tourism".
• An HR manager "embellishes" a job description. (Remember, criminal sanctions are personal.)

Return to the top of this page

TN-Medical Technologist---Hospital HR Horror Story

(January 5, 1997)

At our hospital, we have employed 2 Canadians as EEG Technologist, bringing them across the border under the Medical Technologist category. We brought them directly from training school. There are two other local hospitals employing Canadian EEG Techs in our city and I know of Canadian Techs working in Detroit and Boston.

Yes, it's hard to fill these positions and the smart ones (like you) are also recruiting in Canada. See the FAQ question Why Should we Hire a Canadian?

For the first three years there were no problems when the techs went to the border to renew. This year when the Canadian who has been with us for two years went to the border he had major difficulties. They did not want to renew because of:

1. He did not have 3 years experience in Canada before coming to the U.S.

The experience does not have to be in Canada. You can count the experience he had in the U.S. if it would help meet the requirement.

2. They did not feel that he qualified under the Medical Technologist category. He then tried to use the Scientific Technologist (Biology) and they said that also required 3 years experience. (The paperwork I have and that I found in your site did not show this requirement.)

You are correct. There's no such requirement. You just need to carefully show where the person obtained the skills and techniques of scientific technology, and relate these skills to the prospective job. See the requirements on our NAFTA page.

3. They said he had a permanent job in the U.S. and therefore could not qualify as a temporary worker.

There's no requirement that the nature of the job be temporary. People can spend many years on TN status and it can still be O.K. The employer needs to intend to hire the person temporarily, even though the nature of the job is permanent. In our applications we state that the person is needed 3-5 years.

4. They said he was using the TN status too many times. (This was his third time.)

Many people have been on TN status since the original CFTA in 1989!

One of the advantages of TN status is that there is no top cap. This is intentional, on the part of the NAFTA negotiators, the Working Group and the INS rulemaking procedures. In my opinion, an inspector who says otherwise says that all these people are wrong. (Of course, it's the inspector that's holding the marbles, not me!

What finally worked was when he told them there is a shortage of qualified EEG Technologists in the U.S. (true) and there was no training school in WA, the closest school being in California. (True)

Good. Whatever works.

Between you and me, labour shortages are irrelevant, but why knock it if it works!

The very purpose of NAFTA free trade is to give up labour market protections in return for access to the other country's market.

Incidently I like the "(True)" part. There are severe penalties for misrepresentation. Under the new law (See New Law Hits Canadians (January 5, 1997) ) both you and the employee face these penalties.

If you have any advice for me to help my Canadian employees, great.

Here are some options to avoid this type of hassle next time around.

You could:

1. Have us file renewal applications for you by mail. See the FAQ for information on mail vs. border renewal applications.
2. Go for Green Cards. Once a person gets the Green Card, the saga is over. Check the FAQ for the advantages of Green Cards for you and the employees. Health professions are favored for the quick National Interest Waiver Green Cards.
3. Read our FAQ: Stopped at the Border to learn what to do in these emergency situations.

If you want to use this information for your other clients, that is fine. I have really appreciated your Web site.

Return to the top of this page

Give Up Citizenship or Green Card, Face "Tax Hell"

(January 5, 1997)

The Health Insurance Portability and Accountability Act of 1996 (of all places) contains tax and immigration land mines.

Individuals who relinquish U.S. citizenship with the purpose of avoiding U.S. taxes are already subject to special tax provisions. The new measures expand and strengthen the present provisions.

Here are highlights of the law, courtesy of Interpreter Releases. Some of the information is a bit technical and you may wish to share it with your accountant. In-house financial and HR staff should analyze the effect of this law on expatriated and repatriated employees. Feel free to have these professionals call me with questions at 716.842.3104.

The new law:

• extends the expatriation tax provisions not only to U.S. citizens who lose citizenship, but also to certain long-term residents of the U.S. whose U.S. residency terminates.
• expands the categories of income and gains that are treated as U.S. source if earned by an individual subject to the expatriation tax provisions
• includes provisions to eliminate the ability to engage in certain transactions that circumvent the 10-year reach of the expatriation tax
• provides relief from double taxation where another country imposes tax on items that would be subject to U.S. tax under the expatriation tax provisions
• imposes reporting obligations on expatriates

These provisions supplement another law, which makes some renounced U.S. citizens permanently excludable from the U.S.

Before renouncing citizenship or abandoning Green Cards, contact our office. You may also wish to consult with U.S./Canada tax experts.

Return to the top of this page

U.S. Employers Willing to Hire Canadians

(January 5, 1997)

The Contractors Network Corporation has agreed to maintain our joint Web page: The U.S. Job Page for Canadians.

This is a joint Web page of our office and CNC. It contains listings of U.S. jobs where the employer is willing to consider a Canadian. We also hope to have a Positions Offered section of Canadian professionals looking for jobs.

CNC is Canada's largest national information technology contract consulting/temporary staffing firm, with over 600 consultants working at project sites across Canada and the U.S.

Return to the top of this page

Tips for Canadian Journalists

(January 5, 1997)

The TN Technical Publications Writer category has remarkable flexibility. Canadians with a wide variety of college degrees can qualify.

With flexibility often comes an INS perception that "people are abusing this category." TN applications then become tricky.

One of our readers describes this "perception of abuse" in action:

I am a Canadian citizen. . .recently turned down at the. . .border for a TN visa. . .According to [the INS], the job I was offered as a Financial Journalist, did not fit the category of Technical Publications Writer. Despite the fact that it is an industry publication i.e., only subscribed to by banks and other financial institutions, requiring specialised financial knowledge, (I was formerly Financial Editor at an English language newspaper in Europe and possess four years experience in publishing.). . .[The INS officer] suggested I should go the H1B route, however, the employer cannot hold the job for three to six months while this is processed.

Do you feel it would be prudent for me to request an immigration Judge's Hearing with your help, or should I give up on the United States?

I'm sorry you've had to go through this.

Please review the Dictionary of Occupational Titles description for technical publications writer.

Does your potential job description track this?

Does your bachelor's degree provide you with the principles and techniques necessary to do that job?

What was your major?

I agree that the exclusion hearing and the H-1 are not the best options. Hearings take many months to resolve. The H-1, for many reasons, is inferior for Canadians going on TN status. Compare the At a Glance tables on the H-1 and TN pages to see why.

Let me know if you would like us to carry the ball for you and your employer. Since your job offer may disappear, you may wish to make a decision at once.

Other readers may wish to contact our office before reaching this stage. Proactivity is crucial to immigration success.

Return to the top of this page

Systems Analyst Confounded by NAFTA's Boolean Logic

(January 5, 1997)

I am a computer Programmer/Analyst living in central British Columbia. Since the early summer I have been concentrating my efforts on getting a job south of the border. Since July there have been several jobs which have fallen through for miscellaneous reasons. Several people have told me that I would have been hired if I was there on their door step.

My computer experience is wide and varied but it lacks depth. My recent experience has been self employment---which is hard to document well. I have about three years of college education but no diploma. I do have a one year programming certificate.

The last time I looked at your professional qualifications page it said that I required a two year diploma for a TN-1. Since then a few people have agreed with this while several other well informed people have disagreed.

While clearing out my filing cabinet last week I finally found a copy of the INS NAFTA information Form M-616. . .This form mentions Appendix 1603.D.1 and states that for a "Computer Systems Analyst" the "Minimum Educational Requirements and Alternative Credentials" are "Baccalaureate or Licenciatura degree; or Post-Secondary Diploma or Post Secondary Certificate and three years' experience.

My point is that the last time I looked at your. . .page it mentioned the two year diploma option but does not mention the Certificate and three years experience option. In fact this INS form is the first written mention I have seen of this option.

You need one of these:

1. Bachelor's degree in computers, or
2. Post-secondary diploma (two years) plus three years' experience, or
3. Post-secondary certificate (two years) plus three years' experience.

Put another way:

(BS) or ((diploma or certificate) and (3 years experience))

In July I was flown to Cincinnati by a large consulting company for extensive interviews. They were willing to hire me but their internal legal department said that they did not believe that I was currently eligible to get TN-1 status. On this point the job offer floundered. I wish that I had had this INS form to flash in their faces.

If this happens again, have them give me a call before they come to this conclusion. There are a number of options for computer specialists, some not even requiring a degree at all.

Corporate counsel can call a border immigration lawyer to augment their expertise. Knowledge of the "law on the books" is not enough. The "law in action" is what counts.

Return to the top of this page

Can TN Teachers Teach at Elementary Schools?

(January 5, 1997)

Programmers aren't the only ones confounded by NAFTA's boolean expressions:

In surfing through your Web-site I came across "list of TN professions". In it you have listed "Teacher (baccalaureate degree: college, seminary or university only)".

Does this mean that you have to teach at a baccalaureate degree: college, seminary or university only level or does it mean that you must have a degree and could teach, for example, at an elementary school?

Yet another example of the ambiguous wording of NAFTA. (INS officers are often also confounded by the language.)

You need to have your bachelor's degree, but can teach at a college that only gives degrees less than baccalaureate. For example, a community college is fine. You cannot use the TN to teach at an elementary or secondary school.

Elementary and secondary teachers can use the H-1. The main challenge is to secure the school's sponsorship. See our FAQ for information on how to negotiate for immigration benefits with U.S. employers.

Thanks to your comment, I'll clarify this in future editions of this Website and the Canada-U.S. Business Immigration Handbook.

Return to the top of this page

Lots of Courses But No Degree? You Can Still Get a TN

(January 5, 1997)

Now that we've clarified what degree you need, what if you haven't quite obtained the sheepskin?

Many Canadians have completed substantial coursework but quit or transfer before receiving the formal diploma.

One reader discovered an option:

I have signed up with the excellent Regents College of the University of the State of New York (SUNY) in Albany, NY. I expect to receive an Associate of Science Degree in Computer Software sometime this winter.

Regents combines educational credits combined from any legitimate source worldwide. They are a legitimate and respected college. They issue Associate Degrees, Bachelor Degrees and---only recently---one type of Master of Arts.

This is interesting. I recently had a client missing one credit hour for the degree, and this would have been quite the option for him! (Per my request, he went back to his original college, and they gave him the degree based on "equivalent life experience.")

Remember, not all TN categories require degrees. Check the complete list of TN categories. Also look at non-degree options for computer specialists.

Return to the top of this page