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2. Canadian Landed Immigrant---not a Canadian Citizen.
Any special privileges?
Can I go from TN to Green Card Status?
11. Can I use the
National Interest Waiver to avoid an individual Labor Certification for
my Green Card?
Questions 14-20 (Mechanics) are on
Part II of this FAQ.
21. How much
will it cost? (This link will take you to another Web page: FAQ:
Frequently Asked Questions: Business Immigration Legal Fees.)
Joseph C. Grasmick
Here are questions and answers about U.S. immigration---just for Canadians. The information is Canadian-specific. (Immigration is very different for citizens of other countries.)
These are actual questions from private E-mail questions to my office. I enjoy maintaining this FAQ since it mirrors my law practice. (If you intend to use my services feel free to make an inquiry. See information about our office and our fees FAQ to help you make this decision.)
Information on this FAQ is not found elsewhere. This is because most visitors to the U.S. are not Canadian. Most immigration resources do not deal with special issues facing Canadians. For example, only Canadians can get L-1 and TN permits at the border and on the spot. Also, most immigration law resources are not specifically dedicated to business visas.
You may also wish to refer to frequently asked questions about legal fees. These extensive questions deserve their own FAQ on another Web page.
ANSWER: No. Canadian landed immigrants no longer receive special privileges.
Here are special privileges for Canadian citizens:
Canadian citizens only:
Try the interactive visa selector to find the quickest and easiest option for your Canadian citizen employee.
Canadian citizens do not need a passport visa for most work permits. (A passport visa is a stamp from the U.S. Consulate.) Canadian Landed Immigrants do need passport visas for work permits. All employees will still need the appropriate work permit on form I-94.
Ask us if Canadian citizenship would make it easier to get a U.S. work permit for your employee. If you have Canadian landed immigrant staff consult with a Canadian immigration lawyer. You may be able to expedite Canadian citizenship.
ANSWER: In some cases, you may not need a work permit. B-1 Visitors for Business can do many things in the U.S. that look like "work". For example, you can come to the U.S. to install, service and train if the services relate to sales of Canadian-made software.
There are three different ways to facilitate B-1 status for Canadian citizens:
The B-1 is not a work permit. If you do need a work permit, first try the TN. It's quick. You get it right at the border. Employers and clients love it, especially if they're used to going through the time-consuming H-1 paperwork. I've seen many Canadians go through the H-1 paperwork unnecessarily.
To get the TN, your profession must be on the NAFTA-TN list of professions.
If your profession is not on the TN list, you may need the H-1 or another permit. For the H-1B you need to first apply to the labor dept. Then, apply to the INS. You pick up your I-94 at the border. (Canadians do not need passport visas.)
Once you get into the H-1 and other permits, costs in time and hassle increase. You may find that the expense isn't worth the revenues generated by a four month contract. In these case, try to make the B-1 work.
ANSWER: Good question. Many people look at the name of the visa, "The L-1 Intracompany Transferee", and say "It's not for me. . .I'm not being transferred to the U.S." They feel it's not for part-time work.
This is a misconception.
The L-1 temporary work permit is very flexible. You can come to the U.S. part-time or full time.
In fact, as long as you are performing services for the U.S. subsidiary, you can still be paid through the overseas parent. (Of course, you can be paid from the U.S. subsidiary, if you'd like. The immigration authorities may find it easier to deal with, if your salary comes from the U.S. subsidiary.)
Savvy human resource managers use this permit to cut expenses. I have seen forward-thinking companies:
Once you get your green card on the priority worker transferee category, you must then intend to work full-time in the U.S. Even then, though, extensive travel to assist the parent company abroad is allowable. (The priority worker transferee green card requirements are similar to those of the L-1.)
Incidently, Canadian tax accountants tell me that this flexibility allows for some excellent tax planning opportunities for Canadians. . .especially during the first year of L-1 status. If you need such an expert, refer to the list of international specialists.
ANSWER: Not automatically. You can change your status to permanent residency, in which case your spouse would be able to work on his or her green card. Speed is crucial since green cards take time. If you are on an L-1, your L-2 spouse can apply for a work permit.
The issue of spousal employment is big. Success in filing vacant jobs often rises or falls on whether a candidate's spouse can find work in the new location. In the NAFTA agreement, the Working Group's mandate is to move towards allowing TD's to work, without having to find an employer sponsor. This is not reality yet. I will let everyone know when (and if) it happens. See the News page about how to receive updates. (This News is geared specifically for Canadians.)
Here are some options:
Summary: The best solution for most of our clients is the first option---get the Green Card fast.
ANSWER: Either way is fine.
There are advantages to each approach. By comparing the number of entries on these two lists, you'll see my favorite approach of the two:
Advantages of Renewing By Mail:
Advantages of A Border Application:
ANSWER: Yes. You will need approval of another TN application before you can start work with the second employer.We can do this for you either at the border---or if you have enough lead time---by mail. Here are some points that may help:
ANSWER: Not always.
The technical policy is that your degree must "closely match" the TN job category. This is one of the highest reasons for TN denials. Nevertheless, consider the outcome on a sliding scale: the closer the match the better the chance of success. Here are possible outcomes:
When the linkage is weak, here are some strategies:
An immigration lawyer's skills are particularly useful to:
Consider other immigration strategies if you cannot show linkages:
While you should evaluate eligibility for the H-1, the TN better serves most Canadians. H-1 permits also require specific bachelor's degrees and tight relationships between the degree and the job. See the H-1 page for exceptional "work experience substitute for degree" rules.
It is perfectly legal to convert a TN to a Green Card. Many Canadians have done this successfully. A "No" answer to this question is a popular and harmful misconception.
A related question is "Will my Green Card application cause trouble when I renew my TN?
ANSWER: Perhaps. TN renewals with a pending green card application are still possible. They are tricky. You must carefully plan your strategy.
The regulation for L-1's and H-1's state what you need to show if you are renewing your permit and have a permanent application pending. To be safe, you should be prepared to show the same things for TN renewal. Register at the Electronic Newsletter to be automatically advised of new developments.
This dual intent doctrine is in the regulations for L-1 and H-1 permits, but is not specifically given to TN's. Right now, the immigration authorities generally treat TN's under the same doctrine. This could change. In fact, there seems to be a trend towards increased scrutiny of TNs with pending green card applications.
Here is a relevant quote from immigration regulations:
The Service has, traditionally, considered applying for adjustment of status as relevant evidence in determining whether an alien has abandoned the requisite nonimmigrant intent. Section 214(b) of the Act does not, however, require the Service to hold this position as an absolute rule. So long as the alien clearly intends to comply with the requirements of his or her nonimmigrant status, the fact that the alien would like to become a permanent resident, if the law permits this, does not bar the alien's continued holding of a nonimmigrant status.
Special Advantage to Canadians
Also note that may TN Canadians help their cases by traveling to Canada frequently. This means that if you are making a trip to Canada before getting your green card, your entry into the U.S. is "temporary" even if you have a green card application pending.
Furthermore Canadians do not need a passport visa. They do not need to pass scrutiny at the U.S. Consulate.
By Mail vs. at the Border
There is no form to fill out for the initial TN visa application. There is no requirement to disclose any pending green card applications. The Free Trade Officer would have to ask specific questions or take special efforts to check the computer. At all but one or two ports of entry they are not particularly interested in this issue. The TN is the main permit we handle, and I've only received a handful of comments from an officer regarding permanent intent since the CFTA and NAFTA.
The inspector will be more likely to ask questions about pending green card applications the longer you stay on TN status. (Incidently, if you are asked any questions, always tell the truth.)
If you "renew" your TN at the border, there is no form, but if you renew by mail there is a form which asks if your employer has filed an immigrant petition for you.
Here are some strategies to minimize intending immigrant problems:
Many good immigration lawyers will not handle a "TN direct to green card" case. Many NAFTA experienced lawyers will. Each approach is valid. You should rely on the professional judgement of your retained attorney.
Your attorney will take into account the risks and benefits of each approach. These risks can be immigration risks. An example of an immigration risk is the chance immigration authorities will deny your TN extension application.
The risks can also be professional or business. For example, will employment last long enough for you to go through a TN, then an H-1 and then a green card application? Will you have to start at "square one" with a new employer caused by the extra H-1 processing time?
ANSWER: There is no top limit on the number of years a person can be on temporary TN status. Nevertheless, I expect that some day INS will say "no more renewals. . .after all, this is a temporary visa." Review current developments regularly for any news on this.
Go for your green card if you're going to be in the U.S. for a while.
ANSWER: You can apply for permanent residence whenever you like. Because of long processing times, you should start assembling the paperwork ASAP.
ANSWER: If you acquired your L-1 based on specialized knowledge (an L-1B), I would consult with a lawyer to see if you can avoid an individual labor certification. Normally people who use the "specialized knowledge" category cannot qualify, but there may be a way to do it depending on your facts.
People on L-1A's (managers and executives) can, on the other hand, easily switch to permanent residency through the priority worker green card category.
You can get this green card at the "speed of light." (Note that the speed of light measured by government paperwork standards, is not quite the same as the actual speed of light!)
These green cards have two additional requirements not present in L-1 rules:
ANSWER: The National Interest Waiver (and other "super" Green Care categories) is a nice way to get out from under the infamous labor certification.
If you have a Master's degree look into this. Even if you only have a Bachelor's degree, substantial employment experience can substitute for the missing academics.
What does national interest mean?
There are no clear rules.
This is both good and bad. It's good, because you and your lawyer have a good deal of latitude in showing that you fit into the category. It's bad, because you don't get a clear advance picture of where you stand.
Here's some new information that may help. This is official information from immigration's Northern Service Center:
To qualify for an exemption from the requirement of a job offer, and thus of a labor certification, you must submit Form ETA-750B, "Statement of Qualification of Alien" in duplicate and evidence to support your claim that such exemption would be in the national interest.
Factors that may be considered in determining national interest include but are not limited to improving the U.S. economy, improving health care, improving education and training programs, creating employment opportunities, improving wages and working conditions, improving the environment, improving cultural awareness and diversity through artistic endeavors, and significant scientific contributions.
The evidence should establish the significance of the program or activity in which you are engaged and the significance of your participation in the program or activity. What consequences would occur of you were unable to begin or continue your participation in the activity? What have you already accomplished in the field? How would your participation in the program or activity have a greater impact than others in the field? You may submit letters from recognized national experts in the field explaining how your participation would benefit the national interest. If there is an interested U.S. government agency, submit a letter from an official of that agency.
There are no official guidelines for national interest waivers. We have copies of several previous AAU decisions and often refer to them for guidance.
ANSWER: Yes. Simple prevention usually works.
Who Needs This Information
Many ask this question. Here are common examples of at-risk Canadians:
These job situations are common as our economy becomes
internationalized. In addition, with post 9/11 scrutiny,
immigration is simply catching more residence-abandoning people who
slipped through in the past. Border enforcement payroll is
exponentially larger now. There are now in-country checks, exit
controls and passport requirements.
I have heard these actual stories:
One of these exceptions is for people working on U.S. government contracts. Check to see if your prospective employer is working on such a project. Then see if you can work on it.
Incidentally, the law on snatched green cards is this: as long as you continuously intend to keep your green card, the immigration authorities cannot lift it. The above factors only create beneficial presumptions as to your intent.
How I Can Help
Here are ways I can help you or your employees:
ANSWER: Yes. See our U.S. citizenship page.Part II of this FAQ.
Law Office of Joseph C. Grasmick, Business Immigration
300 International Drive
Williamsville, NY 14221 USA
Tel: 716/842-3100 firstname.lastname@example.org
This Internet Web page is http://www.grasmick.com/canimfaq.htm