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Law Office of Joseph C. Grasmick --Business Immigration--
Rated "AV" (a lawyer's highest possible rating) by Martindale-Hubbel

Exporting Canadian Construction Services to the U.S.A.---The Immigration Angle

Introduction to This Page

Photograph of Joseph C. Grasmick

This page of our Internet web site is for Canadian construction companies. It describes U.S. immigration rules as they affect your industry. This information is for project managers and executives. It should give you the general information you need to bid on U.S. projects. The information will then help you fulfill the contract.

The text is based on a Toronto seminar--- "Exporting Construction Services to the United States"--- sponsored by the province of Ontario, Regional Industrial Expansion.

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U.S. Immigration---Your First Concern

If you decide to enter the U.S. market, U.S. immigration should be your first concern. Immigration is the only factor that can put you at a competitive disadvantage to U.S. contractors.

U.S. immigration is the only discriminatory body of law.

The U.S. has no currency control laws. Canadians are free to buy property. You can form corporations. You can do business just like U.S. citizens. In some cases, tax treatment of Canadians can be even more favorable than that of U.S. citizens. U.S. immigration is the only discriminatory body of law.

Of course, there are other challenges to doing business in the U.S. But the competition has to cope with these other pitfalls too. Only immigration law singles out Canadian businesses.

Construction is the only industry singled out for special restriction in the regulations.

Construction companies should even be more concerned with immigration than other industries. Construction is the only industry singled out for special restriction in the regulations. This is because of a lawsuit bought by a U.S. labor union.

Even with these immigration restrictions, contractors should not be kept from entering the U.S.

The secret?

Advance planning:

  • Anticipate future immigration needs.
  • Apply for immigration status in advance with professional help.
  • If necessary, engineer your business plans and structure ahead of time.
  • Study the "immigration angle" just as you do the "tax angle".

This report shows you how you can put your company on equal footing with American contractors. After reading it, you will be able to see which immigration status your employees need. You will also learn how to get that status quickly, before it's too late.

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Timing is Everything

A late work permit for a key employee can disrupt or destroy the project.

Nowhere is timing more important than in construction. The construction project requires coordination between many independent contractors. A late work permit for a key employee can disrupt or destroy the project.

The FAQ-Frequently Asked Questions explains how our office can expedite your application.

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The Three Paths to U.S. Business Success

There are three typical immigration strategies used successfully by Canadian contractors:

  • First, contractors and their employees with no work permission.
  • Second, those with temporary work permission.
  • Third, people who choose permanent status.

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The First Path: No Work Permit Necessary

First, no work permission.

As Canadians, your employees probably come to the States over the bridge or through the airport. Immigration asks the purpose of the trip. If the inspector feels the traveller is not going to work, he or she is waved through.

Whether you know it or not the traveller is given immigration status. There is no form or visa showing the status. There isn't even an application form. Still, immigration gave the traveller B-1 status.

Here are some of the advantages of a B-1:

  • Quick--- no delay to start doing business.
  • No paperwork--- save precious corporate resources.
  • Reduce risk with company supporting letter.
Joe Grasmick showing a client the three ways to obtain B-1 status.
Choices: Joe Grasmick shows a client the three ways to get B-1 status.

There are three ways to get this status:

  1. The smile and wave method: Appear at the border, and state the purpose of the trip. Immigration lets the employee in with no paperwork created.
  2. The official looking letter: Have an immigration specialist prepare a letter on your company letterhead explaining the travel purpose in greater detail. Prepare the letter before you're ever asked for it.
  3. Make it formal: Have your lawyer arrange for a creation of a form "I-94---Arrival and Departure Record." This is a form which shows eligibilty for B-1 status for a period of one year. Since a supervisor authorizes this, showing this form every time the employee crosses the border makes multiple entries easier. Using NAFTA rules you can pick this up right at the border.

There is much more information about B-1 status in this Web site.

One useful example---you can use B-1 status to supervise and train people engaged in certain building or construction work.

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The Second Path: A Full Work Permit

A second way to use immigration to your advantage, is to get work permission. With legal help in advance of the date your employee must arrive, you will get work permission. But, don't wait for a problem. Waiting until INS stops the traveller reduces chances of getting the permit. Waiting can bar him or her for up to six months.

Here are some of the characteristics of work permission visas:

  1. No constant explanation of purpose of visit. Just show card.
  2. Effective use of personnel. Can live in U.S. or split time between countries. Cut salary costs 50% using same employee. Increase quality of work by using existing employees.
  3. Scheduling. Eliminate surprises. Go to U.S. at moments notice to:
    • solicit business
    • supervise construction project and staff
    • troubleshoot management or technical problem
    • open up U.S. office
  4. Increase market share. Work, travel, live, do business like U.S. counterparts.
  5. Several years' security. Allows long-term lease; capital equipment., business and home purchase.
  6. Family can live, travel, study in U.S.
  7. Can convert to permanent status.
  8. Personal taxes---possibly pay less taxes: pay as resident or non-resident.

Our report on L-1 status shows how to qualify for one of the visas--L-1 intracompany transferee status. A report on TN status shows how NAFTA created even more options. You can get both permits right at the border. (Incidentally, if you'd like to keep up to date on new NAFTA developments, bookmark our electronic newsletter.)

With work permission, one just flashes the I-94 card at the border

With work permission, one just flashes the I-94 card at the border, and you're in---without any questioning.

You can still use B-1 status while setting up your U.S. business. Nevertheless, it is a good idea to apply for work permission to arrive before your lease becomes effective. The permission should arrive before you actively manage any U.S. activities.

Construction companies in the process of setting up facilities in the U.S. find work permission useful for managers and executives. They normally use intra-company transferee L-1 permits.

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L-1 Pointers For Construction Contractors

L-1 applications can be especially challenging for the construction industry. This is because INS likes to see L-1 managers supervising layers of employees. The construction industry will often use subcontracted workers and organizations leaving few subordinate T-4 or W-2 type employees to supervise.

A skillfully prepared application can surmount these obstacles. You can show that the L-1 manager is a "functional manager" under these regulations. A functional manager need not show subordinate employees.

The Canada-U.S. Business Immigration Handbook has a well-tested framework for bulletproof functional manager applications.

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TN Permits, NAFTA Permits- Construction Industry Twists

Buried in the list of NAFTA TN professions is a gem: the scientific technician and technologist (civil engineering) category.

We have successfully used this category for skilled construction specialists. No license or university degree is required.

Actual examples of positions filled with this permit include: concrete technician, glass wall specialist, and project manager.

Other useful construction TN categories:

  • engineer
  • management consultant
  • interior designer
  • systems analyst
  • architect
  • geologist
  • industrial designer
  • landscape architect
  • land surveyor
  • urban planner
  • soil scientist

We can help you determine the optimal category for each employee.

There are many other ways to get work permission. See a list of all possible visa categories.

An immigration specialist can prepare the petition for work status. He or she will advise you on how to structure your job description and business structure to best qualify. The FAQ-Frequently Asked Questions can help you decide whether to use legal counsel.

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The Third Path---Green Cards

A third type of useful status, is permanent status. This is the famous "Green Card." It's called the green card, but it's really white---it never was green as long as I remember.

Temporary work permission, which we were just talking about is valid for a maxium five years. After that time there are two options.

One option, is to put a U.S. manager in charge of active management. You would then return to B-1 status, with only occasional visits to the U.S. All employees would be U.S. workers.

The other option, would be to obtain, permanent working status. This is what permanent status can give you:

  1. Permanent personal/business security.Status for life. Immune to future changes to temporary work permission law.
  2. No renewal paperwork.
  3. Valuable fringe benefit for employees.
  4. Family--- Automatically receive status; can work.
  5. Eligible for citizenship.

Check the FAQ-Frequently Asked Questions for a complete list of green card advantages.

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Canadian Commuter Or Full Green Card?

There are two types of permanent working status. The first is permanent commuter status. The second, is full permanent residency.

Permanent commuters enter the U.S. twice a week or seasonally and do not reside here. Full permanent residents establish a residence here. Full permanent residents can also live in Canada at the same time as long as they do not intend to abandon U.S. status. The FAQ-Frequently Asked Questions has information about how to set up a residency to comply with green card requirements. The area is tricky though, and needs some advance planning.

If you have an employee needing a green card, contact us for direction.

Waiting periods for permanent status ranges from 9 months to 2+ years. You would therefore apply for permanent status well before your TN or L-1 status expires.

The secret to permanent immigration success is advance planning. Professional help can speed things up (see the FAQ), but there are still quota waiting periods that even a lawyer can't rush.

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Stay Ahead of the Competition

Remember...by using these immigration approaches, you can be on equal footing with U.S. competition. As a matter of fact, you'll have a competitive advantage over other Canadian companies that aren't as sophisticated as you about U.S. immigration.

Here's the key:

  • Choose the category that gives you the privileges you need.
  • Figure out your timetable.
  • Then, apply fast to get your card before you need it.

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©1999 Law Office of Joseph C. Grasmick
Law Office of Joseph C. Grasmick, Business Immigration
Olympic Towers 300 Pearl Street Suite 200
Buffalo, New York 14202 USA
Tel: 716/842-3100 Fax: 716/842-3105 jgrasmick@grasmick.com

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