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Law Office of Joseph C. Grasmick --Business Immigration--
Established in 1979

Grasmick's U.S. Business Immigration News for Canadians

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Introduction by Joseph C. Grasmick

Business ImmigrationPhotograph of Joseph C. Grasmick


TEL: 716.842.3100
FAX: 416.352.5115

Dear Readers:

This News contains developments too new to include in the Handbooks or FAQ (Frequently Asked Questions). Register above and you will have a virtual subscription to this newsletter.

Astute managers outhire the competition. To do this, they look beyond the border. The qualified candidate may not live in the U.S. Canada---with compatible education and business practice---is a productive source for hard-to-fill positions.

There is a wealth of special immigration opportunities for Canadians. This Web page looks at the dynamic nature of these opportunities. It also provides information to keep our clients continually informed.

Here are a few hints: 1) Register this page to take advantage of fleeting opportunities. Heed warnings before it's too late. 2) Also try the Forum. 3) If you can no longer find an article you saw earlier check our archives. Links to archives are on the Contents, above. You can also retrieve selected archived articles with the search engine.

We often include reader feedback---one of our best sources of news. When we include this information, we often change identifying facts for confidentiality.

Thank you for your visits!


Joseph C. Grasmick

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Work Permit for L-1 & E Spouses

(September 5, 2001)

The House has approved bills which would allow spouses of L-1 and E visa holders to work in the U.S. I emphasize that only the House has approved this. Spouses cannot work until and unless the Senate passes the bills and INS implements the regulations:

Spousal Work Authorization Passes the House

The U.S. House of Representatives today, September 5, passed by voice vote two bills, H.R. 2277 and H.R. 2278, which would provide work authorization for spouses of international transferees. H.R. 2277 provides work authorization for spouses of E visa holders. H.R. 2278 provides the same benefit for spouses of L visa holders and also reduces the one-year employment abroad requirement for some executives and managers under blanket petitions to six months. The bills next go to the Senate where they will be voted on later this month.

(Courtesy of AILA.)

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Streamlined Montreal Consular Processing

(July 4, 2001)

Here is a State Deparment memorandum which describes unique procedures for immigrant visa processing at the U.S. Consulate in Montreal. This is a pilot project. During this test, the specialized and centralized National Visa Center will handle all paperwork up to the final consular interview. If you follow these new instructions you may substantially reduce your wait for a green card. The memo also gives a good overview of green card consular processing for Canadians:

Procedures for Processing I-140 Cases In Canada

The U.S. consulate in Montreal is the only U.S. immigrant visa processing post in Canada. Montreal is a test post for "Packet 4 processing," meaning that the National Visa Center ["NVC"] in Portsmouth NH handles all processing of the Montreal consulate's immigrant visa petitions up to the time of interview.

In September 2000, the Department issued guidance authorizing our consular posts overseas to process I-140 petitions in which the applicant had originally requested Adjustment of Status in the U.S., but had subsequently filed an I-824 to request overseas processing. Under these new procedures, posts abroad may process an employment-based immigrant visa on the basis of the I-797 Notice of Approval of the I-140 petition, copy of the petition, original receipt for the I-824, and proof of the applicant's previous residency in the consular district.

Because Montreal's immigrant visa processing up to interview is done at NVC rather than at post, persons wishing to process in Canada based on their previous residence there must follow procedures different from those outlined in the Department guidance. These procedures are:

If the applicant was last resident in Canada and believes that he or she is eligible for processing in Montreal, the applicant should send the following documents, in an envelope marked "I-824 Special Processing," to the National Visa Center, 32 Rochester Avenue, Portsmouth NH 03801:

  • Copy of the 1-797 Notice of Approval of 1-140 petition,
  • copy of the I-l40 petition, together with copies of the supporting documents submitted to INS at the time the petition was filed,
  • copy of the receipt for 1-824 request for overseas processing, and
  • proof of previous residence in Canada and evidence of ability to return to Canada for processing.

This proof would usually be in the form of a copy of the photo page of one's Canadian passport (for Canadian citizens) or a copy of one's Landed Immigrant form (for permanent residents). In addition, the consulate in Montreal requires that persons going to Montreal for Immigrant Visa interviews must have permission to reside in Canada for a period of at least six months from the date they submit their request for processing to NVC.

The applicant should not send original documents. However, the original I-797 notice of approval and original receipt for the 1-824 must be presented at the time of interview in Montreal.

When NVC receives these documents, it will review them to determine whether the applicant is qualified for processing in Montreal. If the applicant is qualified, NVC will send out a Packet 3 to the applicant (or attorney of record). The applicant must complete the Packet 3 and return the relevant portions to NVC. NVC will then schedule an interview for the applicant in Montreal.

If the applicant is not qualified for Montreal processing or if some of the required documentation is missing, NVC will return the package of documents to the applicant or attorney.

(Courtesy of Hamel Vyas, Esq.)

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Danger at the Border

(June 27, 2001)

INS headquarters has sent instructions to the field advising INS officers at border POE's to place those who present "unapprovable" TN applications into expedited removal. Seattle INS District Director Robert Coleman announced last week in a meeting of cross-border leaders that the Seattle District's policy would be to clearly advise TN applicant's whose applications are deemed deficient that they should withdraw their application and if they don't they will be placed in expedited removal. ("ER'd"). For the time being, the new ER policy will not apply to Pre-Flight Inspection (PFI) faciltities at Canadian airports. However, the Canadian government is expected to pass a bill that will give the INS authorities the power to detain individuals at PFIs. When this bill becomes law, INS will likely grant ER authority to its agents who are stationed at PFI at various airports throughout Canada. The new policy of ERing those with "unapprovable" TN applications is designed to keep the TN applicant from asking to have the TN denial reviewed by an immigration judge.

Expedited removal is a quick border procedure which bypassses immigration judges. The result can be a bar to future entries for years. Read this article in conjunction with Chapter 19 of the TN Handbook 2nd Edition, When Something Goes Wrong, especially the sections What if I Am Denied? and Barred---Not Even Trips to Disneyland.

(Courtesy of Greg Boos.)

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INS Speaks on NAFTA

(June 24, 2001)

The American Immigration Lawyers Association (AILA) and the INS Enforcement Committee discussed troublesome border NAFTA issues on January 25, 2001. Grasmick's TN Handbook owners will recognize these issues---the book discusses them in great detail. (In fact, some of the problems are so important that the Handbook devotes a separate section to each topic.) I have also reported news about many of these questions on this web page over the years.

The meeting's minutes have just been released in unofficial form. This article contains selected text from those minutes about these topics:

  • INS denial of TN software engineer applications where the degree major is not in engineering,
  • denials of TN applications where the degree major does not exactly match the TN classification,
  • inspectors who require a diploma from scientific technicians (the TN List shows that there is no such requirement),
  • rejection of TN applications where the salary is too low,
  • rejection of TN applications where employer's title does not exactly match the NAFTA title,
  • ports that discourage the right to legal representation,
  • INS resistance to advance adjudication of TN and L-1 applications, and
  • entry refusals even when the Canadian has an approved TN or L-1 permit.

The minutes also revealed a new INS practice of calling H-1 employers to verify information in the petition. Here are the minutes of the meeting:

Software Engineers, Degrees, Low Salary, Job Title

[AILA QUESTION] 1. NAFTA adjudications. AILA would like to thank the INS for the 7/24/00 memo on Software Engineers. [See the full text of the memo in the Appendix section of the TN Handbook.] It has helped to alleviate some of the problems that applicants were encountering. However, as you can probably imagine, other issues have arisen:

a. Applicants at many diverse ports of entry have encountered problems with literal-minded readings of the memo. While inspectors are quite properly accepting engineering degrees for Software Engineer positions, some are requiring an engineering degree, and thereby rejecting degrees in other related fields, such as mathematics or computer science. [See Handbook Chapter 10 SCIENTIFIC ENGINEERING TECHNICIANS/TECHNOLOGISTS.]

b. Applicants in other occupations also are seeing their applications denied because their degrees are not an exact match with the occupation, even if they are related. For example, at Sumas, an Accountant was refused because his degree was in Commerce, not Accounting. As indicated in the 7/24 memo, the only NAFTA occupation for which a field of study is specified is Hotel Manager. Thus, POEs should not be requiring exact matches between field of work and field of study. Indeed, in all areas but the Hotel Management field, the treaty and the regulations require only that the individual hold a degree, not that the degree even be in a related field. The facts that the treaty specifies a degree type in that one field, and that INS regulations specify that degrees for H-1B purposes must be in related fields, all point to the conclusion that, had a specific degree been required, it would have been so stated. In any event, it is highly unreasonable to require an exact match of degree and field. [See Handbook Chapter 1 WHAT IF MY COLLEGE MAJOR IS DIFFERENT FROM THE TN JOB TITLE?]

c. Adjudications of applications for people in the Scientific Technician field continue to be problematic. We continue to receive reports of inspectors requiring that Technicians hold at least a 2-year degree, notwithstanding that the regulations' standard is "theoretical knowledge" and "ability to solve practical problems," and makes no reference to a degree requirement. As indicated in the 7/24 memo, clarification on qualification for this category is needed. [Indeed, a section of the Handbook at Chapter 11 is "SCIENTIFIC TECHNICIANS-NO ACADEMICS REQUIRED"!]

d. Some inspectors are rejecting applications on the basis that they believe the salary is too low. An AILA member was advised by an inspector at Edmonton that any application for a position in information technology with a salary of less than $50,000 will be routinely rejected at that port. Neither NAFTA nor the regulations contain any requirements regarding salary, and inspectors should not be making decisions based on their own personal opinions of what the salary should be. [See Handbook APPENDIX 17: NAFTA OFFICER TRAINING MANUAL. That manual shows how INS inspectors are trained to look at the applicant's salary to help decide whether the Canadian will really be working in the required job description. It also gives some typical salary ranges for selected TN classifications. ]

e. Some applicants are continuing to encounter problems because their job titles are not on the list of NAFTA occupations, even if their occupations are on the list. For example, Port Huron denied an application for a Systems Analyst because the job title was Infrastructure Analyst.

[INS RESPONSE:] INS has been conducting regional trainings on NAFTA adjudications. Those who are trained in turn go back to the POEs and conduct trainings there. INS expects to complete the trainings by June 2001. INS will not reinstate the Free Trade Officer system.

Canada and the U.S. both instruct their officers that the qualifying degree should be closely related to the occupation, and one side cannot change this perspective without the agreement of the other. There are working groups-called trilateral forums--of the different agencies involved in temporary entry issues working on common standards for adjudications. Jackie Bednarz of INS chairs these groups.

INS asks that AILA follow up with specific examples of the problems encountered. INS is trying to achieve "transparent criteria" for adjudications.

Discourage Legal Representation

[AILA QUESTION:] AILA members report that their clients have been told that they should not be represented by attorneys, with reasons given ranging from "there must be something wrong with your application if you need an attorney," to "you are throwing your money away because these applications are so simple," to "attorneys don't know what they are doing." These appear to the public to be inappropriate attempts to coerce applicants into proceeding without representation. [See the FAQ questions concerning legal representation, for more information.]

[INS RESPONSE:] INS indicated that the remarks cited regarding representation by attorneys in POE filings are inappropriate, and officers will be admonished not to make such remarks.

Approvals in Advance

[AILA QUESTION:] Pre-admission review of NAFTA applications. Where does the proposal stand to reinstate the voluntary option of providing the NAFTA application to the POE in advance? [See Handbook Chapter 8 CAN I GET AN APPROVAL IN ADVANCE?]

[INS RESPONSE:] The option to send applications to the POE in advance will not be reinstated. INS is concerned that this option creates a backlog and starts a slippery slope of essentially requiring advance filing, which is prohibited under NAFTA. Thus, INS is insisting upon submission of the application only at the time of application for admission.

Refused Entries on Approved Visa

[AILA QUESTION:] Re-entry of Canadians under approved TNs and L-1s. There have been increasing instances of reports of individuals with currently-valid TNs and L-1s being refused entry on those statuses even though no facts (or law) have changed since approval, and even though the inspector has no information that the inspector who first granted the status (and inspectors who subsequently admitted the individual under that status) did not possess. The inspector merely indicates that s/he disagrees with the initial decision and will not admit the individual this time. I-94s have been revoked, and L-1 petitions sent for rescission (a process that takes several months to sort out). This has resulted in considerable upset among employers who should be able to rely upon an adjudication to conduct cross-border business. To suddenly halt the ability of key employees to move back and forth between the two countries on what gives every appearance of being the whim of a particular inspector is focusing increasing attention on the INS' quality of border adjudications, and is likely in the near future to result in considerable adverse publicity. Employers, and employees, must be able to rely upon an approval (absent, of course, the emergence of a ground of inadmissibility) for the period granted.

While the problems seems to arise at many ports of entry, complaints regarding this kind of situation seem to occur most frequently at the Toronto PFI and at Sumas.

AILA suggests that inspectors be emphatically reminded that they may revoke existing statuses (or refuse entry under them) only in the presence of gross error or material change in circumstances.

[INS RESPONSE:] The problem is that, each time an individual enters under NAFTA, it is a new application for admission even if the person still holds an I-94 card from a prior admission, and thus eligibility is within the inspector's scope of review. INS agrees that it makes no sense, from an efficiency point of view, to review eligibility on each admission, but if an inspector encounters information that may not have been available on initial TN admission, that inspector is well within his or her authority to deny admission.

INS Calls H-1B Employers

[AILA QUESTION:] AILA members have been reporting instances of employers receiving calls from INS officials from the Operations division asking about the exact address where an H-1B is working. When asked about the purpose of the call, the officials indicate that they are making sure that H-1Bs are working where they were supposed to be working. One indicated that INS is conducting a survey. Given the supposed limited resources of INS, it seems odd that investigations of where H-1Bs are working are being conducted when the questions of what must be done when an employee goes to a different location remains unsettled. Why are these investigations being conducted?

[INS RESPONSE:] This office is not aware of this effort, but it probably relates to concerns about fraud in the H-1B program. INS is trying to get an idea of the extent of the issue. The H team is preparing instructions to the field.

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Premier Cross-Border Seminar

(June 22, 2001)

This summer, Toronto will host the best annual seminar about Canada-U.S. transfers. The title of the seminar is Effective Cross-Border Executive Transfers: Achieving Borderless H.R. Management. The dates are July 18-19, 2001. The two-day conference will feature 25 leading cross-border experts in areas such as immigration, employment, accounting, and HR. Topics such as cross-border employment agreements and corporate restructuring will provide information relevant for the current economy!

I am pleased to be participating as a speaker. My panel will include Canadian immigration lawyer Gary L. Segal. Also invited to the panel is John Smarsh, INS Port Director for the Toronto airport. Our panel will discuss:

  • When does a job qualify for a TN?
  • When is B-1 an alternative?
  • Catch 22?---Strategies for the employee/job search.
  • Special considerations when the transferee is not a Canadian or U.S. citizen.
  • How to draft a bullet-proof application.
  • Alternatives for "working families".
  • Learn the secrets of NAFTA specialists.
  • What to do when something goes wrong.
Here are examples of other seminar topics, which are listed on the conference brochure:
  • Minimize risk and exposure for your organization and your employees.
  • Apply the strategies required for borderless H.R. management.
  • Handle complex bureaucracies with finesse and effectiveness.
  • Orchestrate individual and high volume transfers with speed and accuracy.
  • Avoid expensive volatile situations.
  • Ensure smooth transitions.
  • Avoid expensive delays.
  • Handle situations involving employees with illness, disabilities or criminal records.
  • Navigate the ins and outs of employment authorizations, validations and exemptions.
  • Understand tax, customs and medical coverage issues.
  • Understand pensions, benefits and stock options.

The fee is hefty---US $1,195.00---but attendance is a must for those professionals who are serious about the subject matter. For a conference brochure or information, contact:

Atlas Information
Alliance for Tax, Legal and Accounting Seminars
PO Box 1637
White Plains, NY 10602

Tel: (Canada conference organizers): 416-367-0620
Fax: 416-367-0622

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Get Handbook 2nd Edition Now

Grasmick's TN Handbook for Canadians -- How to Work in the U.S. Under NAFTA (Immigration, Careers, International Trade, International Law)

(June 18, 2001)

Since May 2000, Grasmick's TN Handbook for Canadians: How to Work in the U.S. Under NAFTA has helped hundreds---if not thousands---of Canadians and their employers. I have tried to keep readers up to date with rule changes by posting updates on the Handbook page. Some of these changes have been dramatic. Without the knowledge, many Canadians would have been denied entry at the border. There have been so many changes and new documents that it became necessary to rewrite the Handbook.

The 2nd edition is a major revision. New features:

  • 300+ new pages and 900+ total pages. Over 50% of the original analysis pages are updated,
  • complete text of Grasmick's Directory: NAFTA-Enabled Immigration Ports of Entry---a $69 value---included at Appendix 6,
  • new rules, analysis and guidelines, changing the way one should prepare TN applications, and
  • format improvements such as full keyword search, internet/internal links, larger fonts, and thumbnail index.

To get the information to the reader quickly, the Handbook remains an e-book only publication. (Paper books take an additional 18-24 months to reach the reader.) To see if the book can help you, review complimentary sample pages.

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Pay for Speed

(June 18, 2001)

Consider Premium Processing to speed adjudication of your employment-based applications. Beginning July 30, 2001, American businesses will have the opportunity to obtain faster processing of mailed TN petitions by taking advantage of a fast-track "premium processing" program. (See the FAQ for the advantages and disadvantages of mail petitions.)

To take advantage of speedier action, INS will charge you a hefty fee. In December 2000, legislation was passed and signed that authorized the Attorney General to collect a $1,000 "premium processing" fee. Businesses may request Premium Processing on pending and newly filed petitions and applications by filing a completed Form I-907 (Request for Premium Processing Service) and paying the $1,000 fee. The $1,000 fee must be paid with a separate check or money order; it cannot be combined with the regular petition fee.

Form I-907 (Request for Premium Processing Service) can be downloaded from the INS Web site, http://www.ins.gov or ordered via the INS forms line, 1-800-870-3767 or National Customer Service Center, 1-800-375-5283. Form I-907 is also in the TN Handbook.

INS guarantees that within 15 calendar days the agency will issue either an approval notice, a notice of intent to deny, a request for evidence or a notice of investigation for fraud. If INS fails to meet its 15-calendar-day guarantee, it will refund the $1,000 to the company. It will still continue to process the petition expeditiously.

In addition to expedited processing, companies that participate in the program may use a dedicated phone number and e-mail address to check on the status of their petition or ask any other questions. The dedicated phone number, e-mail and mailing address for each INS Service Center are in the Form I-907 instructions.

As of June 1, INS has designated the Form I-129, (Petition for Nonimmigrant Worker), for Premium Processing in the following categories:

  • E-1 Treaty Trader;
  • E-2 Treaty Investor;
  • H-2A Agricultural Worker;
  • H-2B Temporary Worker;
  • H-3 Trainee;
  • L-1 Intra-company Transferees;
  • O-1 and O-2 Aliens of Extraordinary Ability or Achievement;
  • P-1, P-2 and P-3 Athletes and Entertainers; and
  • Q-1 International Cultural Exchange Aliens.

On July 30, 2001, INS will add the following categories to the Premium Processing program:

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Laid Off!

»Analysis« (March 15, 2001)

Inquiries from Canadians facing job termination have sharply increased since the New Year. Recent months provided record nationwide layoffs of U.S. workers. Of course, these terminations do not only affect Canadians. Nevertheless, Canadian workers often face a consequence to the termination, not suffered by U.S. counterparts: loss of immigration status. Not only is the source of income lost with the job, but the very right to remain in the U.S. can disappear.

Actual Cases

Job termination is now the most prevalent issue I encounter. Unexpected termination spawns urgent questions. Here are four representative communications---just a sample from recent e-mail and Forum messages:

Message #1: I am a Canadian citizen and have been working in the US under TN visa for past year. I was laid off from my last employer on Aug 28, 2000 although my TN visa only expired on Oct. 10. I have been actively looking for new job since. My questions here: 1- how long can I legally stay in the US to look for other employment? (I called the US-Canada border and they 30 days, is this correct? I have also my son going to school, so leaving the country is not an easy job). 2- how will this affect me getting a new TN Visa? 3- can I apply for a visitor visa from inside US so this gives me some time to look for other employment? (I did not need a visitor visa first time I came to US, or at least my passport does not show it). In general, am I going to be in trouble if I stay in US for as long as a month or two with no visa?

Message #2: My husband came home and told me that tomorrow they are doing layoffs at his work and he is not sure if he will be one. I have a bad feeling about this. I need some serious quick advice. We own a home, have four children in school here and he is on a H1B with the LC [labor certification] applied for . . . by his company last spring. What do we do if he is laid off? Can he look for work? Do we need to reapply at the border for H1B? TN? So lost here. . . need serious help fast!

Message #3:In about 4 weeks, I will resign from [my company]. [My wife] is about to be laid off by [her company] in which case she will remain on the payroll for 60 days. . .Four questions: 1. With termination of employment, will our L1A / L1B visas be terminated, and if not what do I tell immigration upon re-entry (we travel outside the US and the continent often)? 2. What visas if any do we need to legally remain in California? 3. What steps if any do I need to take now or later so that when I do find another job, the process of obtaining the working visa is simple? 4. What papers if any do the children need?

Message #4: I worked for 5 months and then due to corporate cutbacks, my company did some laying off and I was one of the unlucky candidates. I was working under the TN Visa and am now in the process of finding another job. My question to you is, since it's been a couple of months since I've been laid off, how must I go about transferring my visa to the new company I'll be working for? Am I able to simply apply to transfer it to another company and have the paperwork taken care of while in the States, or must I go back to Canada and get my new visa at a border again?

Sometimes immigration applications are already in mid-stream at the time of the dismissal:

The firm that I am consulting to right now is downsizing. I recently sent in my I-129 to Nebraska to renew my TN for another year. If I got laid off and sent in a I-539 Application to Change to Nonimmigrant Status (B2) before I received the approval back from the INS for the I-129, would this cancel my TN renewal and put me out of status for the weeks in between when the TN expires and the I-539 is filed?

In addition to these immediate issues, the discharge can affect long-term permanent residency plans:

I started on an H1B with my employer. We went through the labor certification and then got I-140 [approval]. Did CP [consular processing] in Montreal 3 weeks ago. Today my boss walked in and said that due to changes in the business and my performance they were letting me go. Handed me my final pay check and sent me home. What does this do to my green card?

There are also assorted non-immigration questions:

I have just been informed that I will be laid off in 2 weeks. I will leave to US to go back to Canada. I currently have a lease by which I must give 2 months worth of lease payment if I break my lease. Thus, if I am no longer legal to work in the USA, do I have any chance of getting out of my lease?

You May Have 10 Days to Leave Town

There is a harsh general rule pertaining to TNs and other nonimmigrants who stop employment. If you quit or are terminated from your job, you must leave the U.S. with your family within ten days of your last day of work. (As we will see below, there is other action you can take to avert forced departure.) The legal authority for this rule is murky. One immigration lawyer comments that "it is a myth so strong that even the INS believes it". Nevertheless, it is a prevalent standard used by my INS employees.

This rest of this article reveals strategies for remaining legal during job changes, with minimum disruption to your life.

Step 1-Immigration Outplacement Conference

If you have lost or feel you are about to lose your job, you need immigration counseling. If you are an employer, consider providing this as part of your outplacement services. The small investment in resources can eliminate many potential problems---especially those problems based on misunderstandings. Ideally, the consultation should take place before you terminate the employee.

During the consultation, the employer and employee can coordinate their timetables. A slight difference in the official termination date can make a big difference. Perhaps the employer can even offer the employee a part-time consultancy during the immigration transition. Make sure that the immigration lawyer represents interests of both parties. A quick telephone consultation with specialized outside counsel may be appropriate under these emergent circumstances.

Step 2-Action

Timing is crucial. You must take immediate action to minimize problems similar to those in the above messages. Ideally, the action should come before the last day of work. To help you do this, use the following information which comes from Grasmick's TN Handbook For Canadians—How To Work In The U.S. Under NAFTA.

A Word About the "Ten Day" Rule

Before discussing action you can take, here are some comments about deadlines. The ten-day rule is harsh. Ten days is not much time to cut your ties to the U.S. and renew links to Canada. Technically the rule is even more severe. You do not have even 10 days to act. The INS rules do not explicitly allow any additional time whatsoever!

In practice, INS has not acted against people who act within 10 days. The agency recognizes that a person who has been here for some time must wind down affairs. This is especially true if the NAFTA family has been here for a number of years. The agency also recognizes that job changes often come with no advance warning.

No written rules cover 10 day leave for TN terminations. Nevertheless, the INS has some guidelines in similar non-immigrant situations. For example, when INS denies mail extension applications, the effect is similar to lost employment—the TN is no longer valid. INS gives 10 days or even more time if warranted in these situations:

If an extension application is denied and the applicant has 10 days or more left on his previously authorized stay, he shall be requested to effect his departure on or before the expiration of that previously authorized stay, unless there are exceptional circumstances warranting additional time. If an extension application is denied and the applicant has less than 10 days left on his previously authorized stay, or such stay has already expired, he shall be requested to effect his departure on or before 10 days from the date he is notified of the denial, unless there are exceptional circumstances warranting additional time. The alien, however, is deemed within status for the filing of an otherwise approvable new petition within a reasonable time, depending on the particular circumstances.

Nevertheless, to be safe, I encourage my clients to act well before the last day on the job.

Overstays Face 3-10 Year Ban

There can be severe consequences for failure to appreciate the impact of defunct TN status. One severe consequence is a complete bar to future entries to the U.S. These bars can last three to 10 years. With this bar in place, you cannot come to the U.S. for any purposes—even as a visitor!

Here is a portrait of this bar in precise legal terms:

Any person who departs the U.S. having accrued more than six months of consecutive "unlawful presence," beginning on or after April 1, 1997, will be subject to a three-year bar. The bar extends to 10 years if the unlawful presence totals one year. Unlawful presence accrues only after:

  • a defined period of authorized stay as specifically documented on an I-94, or
  • as of the date of a decision by the INS or Immigration Judge that the alien has violated status.

In the second case, accrual begins on the date of the decision, not the violation. Overstaying beyond a specific date on an I-94 triggers accrual of unlawful presence. It is also triggered when a decision of violation of status is made. Canadians admitted as visitors are visa and documentarily exempt. In the absence of an I-94, unlawful presence never accrues until a decision of violation of status is made. If the Canadian was admitted as an TN, TD or in another nonimmigrant category documented with an I-94 entry card, then great care must be given to analyzing the potential for penalties.

Remember that this bar is not the only penalty for failure to maintain proper status. Even if you return to Canada six months before the expiration date on your I-94, there are other sanctions. These sanctions come into play immediately.

These sanctions are very real. They do happen. For example, a Canadian recently contacted me. She had remained in the U.S. on an I-94 issued for her first employer for three months after employment termination. She interviewed for other jobs during this time. During these three months, she also took a brief trip to Canada, reentering on that I-94. She believed that her TN allowed her to stay in the U.S. and travel. Three months later, she found another job. She went to the border to get a new TN. INS detained her because she had "willfully withheld a material fact" during her prior trip to and from Canada—the fact that she no longer worked for the sponsoring employer. INS seized her vehicle and placed her in deportation proceedings. The officials told her there would be a potential five-year bar on her future U.S. entries.

Action: No New Employer Yet—Interim Visitor Status

Is there anything you can do if you do not have another job waiting for you when you and your employer part ways? Changing to a B-2 or B-1 visitor visa may buy you time to find a job or move back to Canada within a comfortable timetable.

Two Canadians share their job and immigration woes:

Message #1: My employer, a large engineering firm that is currently shedding staff in record numbers, laid me off today. I understand that I have 10 days from today to either file to change my TN to another employer or to change my status to another category like a visitor. Otherwise, I must leave the US. Here are my questions: a) If I find another employer within this 10-day period (ha!), does it have to be another engineering firm? Can it be another category like management consulting? b) If I am unable to find another employer within this 10 day period, can I change my status to visitor (I am a Canadian citizen) and stay here for a couple of months until I find employment? …

Message #2: Unfortunately, due to poor business my employer let me go. My understanding is that I must also leave the country. Sadly, we have purchased a home in NC. My family (wife and two children) is quite settled here. Question: Do I need to leave the country in two weeks?

Here was my response to both:

You have a lot to do in 10 days. File a mail application either for a B-2 or B-1 visitor permit. A timely filed application will at least keep you here legally and give you breathing space. Move immediately since this 10-day rule is a little fuzzy. Better yet, convince your employer to keep you on the payroll so you can file the application while you are still employed. (Note that in other non-immigrant visa contexts INS feels that a mere "severance period" is not enough to extend the deadline.)

Action: New Employer

There are procedures available to preserve your legality during job transitions. If you have a new employer ready to hire you, you can apply for another TN. You must actually have the approval before you can start work with the new employer. You can either do this at the border, or by mail. If you file a timely mail application, you can remain in the U.S. while awaiting the INS decision. You can continue to work for the first employer as long as the I-94 has not expired. You cannot work for the second employer until you receive a new I-94. It is rare that a second employer will wait for a mail application. In fact, most Canadians use the quick border procedures to get a new TN under these circumstances. (See FAQ Question "6. Should I renew a TN at the border or by mail?")

Remember: the mere fact INS granted you TN status once before does not guarantee another approval. (See Renewals Are Not Automatic, June 9, 2000) In spite of time pressures, make sure you legally qualify under the new job description. Take extra care to provide complete documentation.

People who have been on H-1 status should consider the new "portability" rules. It may be possible to start work on H-1B status while you are waiting for an approval.

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POE Directory

Grasmick's Directory: NAFTA-Enabled Immigration Ports of Entry

(March 15, 2001)

Grasmick's Directory: NAFTA-Enabled Immigration Ports of Entry is now available. This is an annotated directory of INS ports of entry, with a NAFTA emphasis. The Directory includes 235 land, air, and pre-flight inspection border stations. It lists inspection facilities at southern, northern and Canadian airport locations. Information for selected ports includes contacts, local procedures, best hours, remarks, and user satisfaction poll results. The download includes 102 PDF pages of text, graphs, and 26 photographs. This ebook-only directory is for immigration attorneys, recruiters, and other HR professionals. It is also for Canadians using a NAFTA work permit and requiring accessible port contact information. The information in this book is hard to find--especially when facing a deadline.

The Directory is available for immediate purchase and download. It is free of charge to TN Handbook owners.

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Yet Another Pilot Program

The Blue Water Bridges linking Port Huron, MI with Sarnia, ON at the point where Lake Huron becomes the St. Clair River.

(March 15, 2001)

Do you use the Bluewater Bridge connecting Port Huron, Michigan and Point Edward Ontario? You may be able to take advantage of a U.S.-Canada border pass pilot project. Called NEXUS, this program gives low-risk pre-approved users simplified entry into both Canada and the U.S. Passholders will be able to use dedicated lanes at the border. They will not ordinarily be subject to the usual customs and immigration checks.

You will need to fill out only one application form. Both countries will approve it. You will then receive a card valid for travel into both Canada and the U.S. Citizens, nationals, or permanent residents of the U.S. or Canada can apply. Here are the steps:

  • submit application and supporting document for review, such as proof of citizenship and or country of residence;
  • show any work authorization or visas;
  • provide hand geometry to ensure that the cards are used only by the designated user;
  • provide photo;
  • take card and window decal.

Call the NEXUS enrollment Center in Port Huron, Michigan at 866 639-8726 or 810 989-2545 to get started.

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Management Consultants: Good News

(March 15, 2001)

Last April we reported that the INS is increasingly reluctant to renew TN management consultant status after two years. (See Management Consultant 2-Yr. Limit April 24, 2000). This policy first surfaced in some of the western ports of entry. It spread to ports under the Buffalo NY, INS jurisdiction. This jurisdiction includes land crossings in upstate NY. It also encompasses INS preclearance facilities at the Toronto and Montreal airports. The rationale for this restrictive policy is that management consultants should normally serve only the temporary and "supernumerary" needs of employing companies. (There is generally no top limit on the total years a TN can work in the U.S.)

There seems to be a relaxation of this absolute prohibition. A liaison meeting between members of Upstate New York AILA Liaison Committee and the Buffalo District Office of the INS held on December 4, 2000 produced the following question and answer:

[QUESTION]. . .TN-Management Consultant. Are there any new policies at the BDO or national level regarding the approvals of TN for management consultants? In particular, will INS issue TN renewals for management consultants to work for the same employer for more than two years?. . .

[ANSWER]. . .There is no automatic two-year limit on TN management consultants. Each application undergoes a case-by-case review. The INS acknowledges that a management consultant can continue to render consulting services to the same client or clients for many years.

In spite of this, you should continue to expect resistance for renewals of long-term management consultants with single, continuing projects. I believe that all ports will continue to renew management consultants who take on multiple, separate contracts. In these cases, the consultant is still serving a series of temporary, sequential needs even while using the TN for many years.

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Automatic Citizenship for Kids

(March 15, 2001)

Children under age 18 may now qualify for automatic or expedited naturalization if they have at least one USC parent. This can eliminate prerequisite green card residency and physical presence requirements. It may eliminate the green card requirement itself. Both cases require the child to have a USC parent:

  • Automatic: Child has a green card.
  • Expedited: The USC parent or "parent of the parent" (grandparent) was physically present in the U.S. for 5 years. Two of these 5 years must have been after the parent's or grandparent's age 14. The child must presently reside outside the U.S. with the USC parent. Since this is expedited, and not automatic, the parent must still apply for naturalization for the child before the child turns 18.

The INS feels that this law is not retroactive. The INS feels that Individuals who are 18 years of age or older on February 27, 2001 do not qualify. Even if the child does not meet these requirements, that child can still apply for naturalization through the normal procedures, i.e., by fulfilling normal naturalization requirements such as permanent U.S. residence, physical presence, etc. as required of adult applicants. There is more information about citizenship on this site.

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