|
Canadian Taxes, U.S. Taxes, Visas and Immigration British Columbia Income
Tax, Real Estate
A
compilation of Information for Canadians entering the United States for any
reason, including work, pleasure, investment, golf, mixed vacation and
research on investment, etc.
ILLEGAL
IMMIGRANT AND LEGAL IMMIGRANT
RESPONSIBILITY ACT OF 1996
On Sept 30, 1996, President Clinton signed the
above bill into law. It is about 240 pages long and a "must" read for
professionals in the business. The following points are only the
highlights but they are important:
|
 david
ingram
Immigration and Visa
Consultation
+1-604-913-9133 |
1.
Overstay your visa more than 180 days and you ARE banned from the U.S.
for three years. Overstay your visa by more than 1 year and you ARE banned
from the U.S. for 10 years. (Section 301 - effective April 1, 1997)
2.
If you give up your existing US citizenship to avoid U.S. Income,
Gift, or Estate taxes, you are banned from the U.S. for life.
You cannot go to the U.S. for a wedding, a holiday, business, or even
a funeral. If you do go, your
car or other transportation can be seized. (Section 352 - effective Sept 30,
1996).
3.
If you are in the U.S. illegally and working and have been
contributing to Social Security, you will not receive credit for any
contributions made while you were working illegally (Section 503 - effective
Dec 1 1996).
4.
If you are in the U.S. legally, you will no longer qualify for any
social benefits such as welfare or food stamps unless you apply for and are
granted citizenship (Section 504).
5.
As of Sept 30, 1998, all visitors will have to check "OUT" of the U.S.
to show that they have left. (Section 110) (This was extended to Apr 30, 2001
on Sept 30, 1998).
6.
Clinton has "COMPELLED" the INS (Immigration and Naturalization
Service) and the IRS to compare notes to find out who is working in the
United States illegally. They will do this by comparing earnings reported for
Social Security Numbers which were not issued for working purposes - (Section
414).
7.
The Attorney general can now authorize state or other local law
enforcement officers to perform the duties of Federal Immigration officers
(Section 372).
8.
The Globe and Mail (Sat, Mar 14, 98 Front Page and 2 full inside
pages) tells the story of Canadians banned from the USA and paying $500 fines
to the USA at Canadian Airports). In 1999, the Canadian Senate passed bill
S22 making the US section of a Canadian Airport equivalent to US soil and
giving the US authorities full arrest powers although they do have to call in
an RCMP officer to be present).
On Dec 15, 1998 at the CASCADIA
CONFERENCE in Seattle, Brian Smith, US Justice Head at Seattle Airport, tells
the assembled group that he had thought his job would be easier with the Free
Trade Agreement, but that in fact, ten years later it is five times harder.
In Dec 1998, at the
CASCADIA CONFERENCE, Roger Simmons, Canadian Consul, in Seattle tells the
assembled room of Mayors, Senators, ex Premiers, ex MLA's, Members of
Congress, and a state Governor that the last confrontation between the US and
Canada was in 1814 when British Troops from Canada burned down the White
House in Washington. He compared
this to Europe where they were killing each other across the German / Dutch
Border, the German / France Border and so on.
His statement was that today, you can drive across those same European
countries with no border checks and yet we have three hour lines at the
Canadian / US border and yet we have a common language, etc.
On June 2, 1999, in Vancouver,
at a BCISIT Seminar moderated by Immigration Lawyer Terry Preshaw, Jackie
Bednarz, head of the Section 16 Working group for US Side of NAFTA explains
to the assembled crowd "just what" a Canadian needs to get a TN visa to work
in the USA. It becomes obvious
that the spouse and children of TN visa holders are not going to be able to
work in the USA even though Canada has allowed spouses to work in Canada in
similar circumstances.
On June 22, 1999 at a PACE
meeting at the WATERFRONT HOTEL in Vancouver, Michael Chang, US Consul told
us of 8,000 Canadians being arrested for working illegally in Nebraska alone.
The Vancouver Province, (Oct 4,
1999 whole front page and two inside pages) tells the story of the US INS
officers looking for 144,000 Canadians working illegally in the USA. This
also tells the story of 5 Canadians locked up for working at functions not
allowed by their visas.
The Dec 1999 RV Times (page 57)
tells of 23,000 Canadians banned from the USA for 5 years.
The Dec 15, 1999 MacLean's
Magazine cover story of the VANISHING BORDER says that one out of four
Canadians wants a US passport and that just about half of us think a common
currency would be fine (this figure stated as 29% in a Jan 15, 2000 Vancouver
Sun Story).
The Jan 8, 2000 Vancouver Sun (whole
front page and inside pages as well) shows Fortress Vancouver and Ian
Mulgrew's article tells Vancouverites to get ready for Israeli Airport
treatment at Vancouver Airport and to get ready to carry a passport to cross
into the USA.
On Jan 12, 2000, Kevin
Ford, a North Vancouver Businessman tells his story of arrest and
imprisonment in the USA after working in a Kiosk in a Bellingham Mall.
(He had owned the business for 7 months and his staff members had all
quit to move away three weeks before Xmas.) Remember, there are only 309 US
INS officers working on the border between Canada and the USA.
With rare exceptions, a Canadian is not caught by the INS once he or
she is "over the border." In every case I see, we can usually figure out who
turned the Canadian in to the IRS. Kevin had actually called in the police
because one of the employees was caught stealing from him.
It is an easy assumption that the arrest by the INS was a retaliation.
Usually, the arrest happens shortly after the firing of US employee by
the Canadian. Jan 22, 2000, 42 India Nationals with H1B visas are arrested,
handcuffed and jailed for working at the Edwards Air Force at San Antonio,
Texas when the visas were issued for work at the company’s head office in
Houston, 200 miles away. The
sin? Well, it appears that the
INS, working to the letter of the law, had decided that the reason for the
issuing of the visas had been violated because the company had not
necessarily showed a need for workers in San Antonio.
Pregnant women and others were confined in school buses and not given
opportunity to use washrooms, etc.
They all had to put up $5,000 US bail to get out.
Thankfully, reason prevailed and after a huge outcry, reason prevailed
and the charges were dropped, but not until everyone had suffered great
hardship and dishonor at the hands of the authorities.
Clearly, we can no longer just drive
across the US border and do whatever we want with impunity.
IF YOU ARE GOING TO THE U.S.,
"IS A VISA NECESSARY?"
CANADIAN
CITIZENS and most NATURALIZED CANADIANS
Most of us entering the
United States are entering as visitors for the purpose of vacationing or a
day or two of shopping. In this case, if you are a Canadian Citizen and born
in Canada, a paper Visa is not required. You are in the United States
legally. You are, "a legal alien not
allowed to work" and this means just what it says. What you have is a
paperless B-2 visa. (Incidentally, if applying for a U.S. Social Security
Number Card, it is this third category you check off, "legal alien NOT
allowed to work.")
If you are found to be
working, you may be deported and not allowed re-entry. And working can
include for example, pouring a concrete driveway at your cabin at Bemidji,
Minnesota, or Point Roberts, Washington if you intend to rent it out or sell
it. (If it is just your own cabin for personal use, you and your immediate
family can pour concrete and build it. However, your brother, cousin and your
next door neighbor from Canada are not allowed to perform any
work on your cabin.) You can supervise the pouring of the concrete or
the building of the cabin, but you are NOT to do the work without permission
from the United States Immigration and Naturalization Service (INS). How do
they find out? A local
contractor to whom you did not give the job, "because for that much money
I'll do it myself", reported you to the Immigration and Naturalization
Service (INS). (See the preface for a story of a deportation and seizure of
car for painting a rental house).
CANADIAN LANDED IMMIGRANTS
FROM COUNTRIES OTHER THAN THE U.S.
However, you may be a
legal resident of Canada, and depending upon your country of origin
(particularly if you are from Cuba for instance)
you may not be allowed into the U.S. for even a day of shopping, or
you may only be allowed into the U.S. after obtaining a visa from the U.S.
Consulate in Vancouver, Calgary, Winnipeg, Toronto, Ottawa, Montreal, etc.
When you get this visa,
it will have restrictions. It may restrict you to only one entry, for
instance. This can be a problem if you are planning a trip across the country
and wanted to duck in and out of Canada at various points. It may be
restricted to use within a month, or be good for six months. Check your
situation if this applies to you.
Another problem is that
even if you are a legal resident of Canada (refugee status for instance)
under a special visa, the United States is another country and you may not be
allowed back into CANADA! If you
find yourself having a problem with U.S. entry, check with Canada Immigration
first. When I showed this to David Stoller, the immigration lawyer who used
to be in our office, he started giving me a long list of people with legal
status in Canada, who cannot
re-enter if they leave for any reason.
If you are a refugee or claiming refugee status, stay on the Canadian
side of the border. If you leave, you will likely not get back in.
The following five
paragraphs are reprinted from the United States CUSTOMS HINTS available at
the border or from U.S. Consulates or Embassies.
In clearing U.S.
customs, a traveler is considered either a "returning resident of the United
States" or a "non-resident." Non-resident status also applies to:
* persons
emigrating to the United States
* children
born abroad who have never resided in the United States; and
* persons who left the United States after abandoning their residence with
the intention not to re-establish U.S. residency
* U.S. residents stationed or working abroad may also claim
non-resident status when returning to the U.S. for a short visit, provided
all articles, except for gifts and items consumed during their visit, are
exported upon departure from the U.S.
WORKING?
(DON'T work without the proper
visa!)
If you are NOT going to
the U.S. to shop or vacation, you must be going to do a job of some sort. The
rules and dates for these visas change in small and sometimes not-so-obvious
ways. For instance, the last three editions of this book dealt with the TC
visa (for Treaty Canada). This
visa no longer exists with NAFTA (the North American Free Trade Agreement).
However, Canadians still receive preferential treatment for entry to
the US. The new visa is a TN for
Treaty NAFTA.
For
instance:
* Canadian citizens
are passport, visa and petition exempt and processing is usually done solely
at the point of entry. Mexican citizens on the other hand are subject to
prior Labor Department notification, petition approval by the INS and the
Consulate must issue the visa.
i.e. * Mexican
citizens are subject to procedural requirements similar to those required by
Canadians for H-2A and H-2B visa classifications under INA 101(a)(15)(H)(i)(a)
and (b). Prospective employers of Mexican citizens must file a labor
condition attestation and obtain approval of a petition filed with the INS.
BUSINESS TRIPS IN GENERAL
Canadians going to the
U.S. on business and saying (as most have been) that they are on vacation or
shopping, risk deportation and the inability to conduct business in the U.S.
If you do not get a visa from the closest U.S. consular offices BEFORE going
to the U.S. on business, EVEN IF YOU ARE ONLY ATTENDING A MEETING IN DETROIT,
LEGALLY YOU ARE AT RISK, WITHOUT A VISA. You may have gone across sixteen
times or a hundred times with no problems. But, when they do catch you
without the proper visa, if you are working, you can have big problems. It is
much simpler for all concerned to get the proper VISA. You may have to fight
for it. The Consular office will look up their rules and say "you don't need
one." However, when the man in the white shirt (INS) at the Toronto or
Vancouver airport keeps you off the plane because you do not have a visa, you
will wish you had pushed a little harder.
A Canadian looking at
property to buy in the U.S. should have a B-1 Visa for instance. Note, there
is an "understood" paperless B-1 visa. This is not adequate when you are
trying to explain yourself to an INS officer at the airport and there are 320
people lined up behind you and the plane leaves in an hour.
A client emphasized this
on June 14, 1991. She and a
co-worker were on their way to the U.S. for a computer demonstration to sell
Canadian computer software. Her co-worker was detained and refused entry to
the U.S. (and missed his flight and the business appointment) at Vancouver
Airport. My client, on the other hand,
did not need a visa because she is both an American and a Canadian
citizen (dual citizenship). However, how do you tell the people you are going
to see that your fellow worker was not allowed into the country?
And it works in
reverse. I have had to fill in
as speaker and guest lecturer for Americans who were not allowed into Canada.
In one instance, 50 people had paid $600 for a 2 day course in
Edmonton. The promoter would
have had to pay back $30,000 if I had not been available to teach the
specific course.
CRIMINAL or QUASI
CRIMINAL RECORD
When a Canadian receives
an absolute or conditional
discharge, he or she does NOT have a Canadian criminal record.
However, the U.S. looks at the charge and the disposition and says,
"it would have been in the U.S. and bans the Canadian who typically sits
there with a dumbfounded look on his or her face. In addition, a stay of
proceedings is NOT a dismissal as evidenced by the renewal of stayed "sex"
charges against former Nova Scotian Premier Gerald Regan.
An
American may be banned from Canada as well.
In August, 1992 a
Canadian immigration official at Vancouver Airport turned away a gentleman
from Atlanta, Georgia. This
gentleman was the great-nephew of the discoverer (Carmacks) of the
gold claim which started the Klondike gold rush.
He was in possession of a personal letter from Eric Neilsen, the
acting Prime Minister of Canada.
The letter was an invitation for Mr. Carmacks to be a guest of honor at the
50th Anniversary of the Alaska Highway.
This particular ceremony was to be held in Carmacks in the Yukon
Territory. He was turned down because of an 8 year old conviction in
the U.S. for DUI (driving under the influence). As an aside, Mr.
Carmacks, the gentleman turned away by the Canadian Immigration officer was
the deputy head of the FBI in Atlanta, Georgia.
In another case relayed
to me by former Vancouver police officer Don Bellamy, the US citizen employee
of a Bellingham Airport business was using a borrowed forklift to load a sign
on his US registered truck at the Langley airport.
An RCMP officer asked him about his actions and after
determining that the fellow did not have a permit to work in Canada, arrested
him. The poor truck driver who
was only using the forklift because everyone had gone home spent Friday
night, all day Saturday, all day Sunday, all day Monday, and Tuesday morning
before an immigration judge told him to go home. You see he could drive the
truck into Canada, park it while a Canadian resident loaded the sign, and
drive out of Canada; he just can't load the truck.
TIME
March 6, 1995. A visa
is only good for the time
stated. Holding over can have dire consequences.
While I was at the airport U.S. immigration counter today, I couldn't
help (honest) overhearing the troubles a chiropractor was having. The
chiropractor had a TN visa, which had expired in January and had stayed over
"as an unpaid observer." He had
come back up to Vancouver for a couple of days to get a renewal of his TN
visa. The INS officer didn't
believe that he had stayed as an "observer" for five weeks.
And it did not matter anyway.
He did not have the right to stay as a visitor when the TN expired. In
addition, he did not have any of the requirements for a TN with him at the
airport (read further on). When I left the area, the chiropractor's wife was
phoning their immigration lawyer and they were missing their plane, which was
leaving in twenty minutes. Note that an admission of holding over now can
result in an automatic banning from the USA for 3, 5 or 10 years.
My thanks to Dennis
Olsen [(206) 304-1030], the former U.S. Consul in Vancouver, who assisted me
with my update from the third edition to the fourth edition. His sharp eye
spotted an error in the H-1 visa area.
This error made it through three previous editions. If your business
or "liberty" depends on something read in this book, please check further
with a professional advisor. We held the publication of this book over to
pick up any relevant details from the Feb 27, 1995 CANADIAN BUDGET. By the
luck of the draw, February 27, 1995 also
marked the implementation of new visa regulations.
Craig Barnett of Michael Jacobsen's immigration law office was kind
enough to get me a copy of the latest rules at the time.
WHAT KIND OF VISA DO I NEED?
A-1 - Ambassador, Public
Minister, Career Diplomat or Consular Officer, or Immediate Family
A-2 - Other foreign
Government Official or Employee, or Immediate Family
A-3 - Attendant, Servant,
or Personal Employee of A-1 or A-2 or immediate family
B-1 -
BUSINESS VISITOR
One of the few paper B-1
visas I have seen issued (I have one as well) was for a lady client who
decided to rent an apartment in Los Angeles because she was there for a week
each month and she wanted a base of operations from which to sell her
Canadian business's services.
The problem was that when she went to ship a bunch of her furniture down,
U.S. immigration officers would not let her enter because it looked like she
was moving to Los Angeles. She
had to produce copies of her Canadian documentation showing a current phone
hooked up, a current mortgage for her residence in Canada before the INS
officers would let her or her furniture across the border. One of her
problems was that she had business cards with her that showed a Los Angeles
address. She was hardly trying
to "sneak" across with a truck full of furniture, but it sort of looked like
it.
If you are in the States
working at investment activities or trading in international goods or
services, this may be for you. The Border Immigration people do not like to
issue B-1 or B-2 visas to Canadians as it implies a more official status
(i.e. persons with the paper visa often think they have a "working visa" when
they do not). But if there is a good reason, they will, if requested on BENT
knee, issue a paper visa. Persons generally covered include, but are not
limited to:
*
Advertising Personnel
* Bankers
* Bus
Drivers taking passengers in or out of the U.S. but not between two U.S.
destinations. (I was told by a U.S. Immigration Officer on May 21st, 1991
that this is not "automatic" either. Bus drivers in this situation are there
by the "grace of the immigration officer" and may be rejected at will. A
regular "Canada to Reno or Atlantic City" tour bus driver might want to get
an official status B-1.
*
Chartered Accountants, CGA's, RIA's (but only if paid by Canada and looking
at the books of a subsidiary for instance) to work there in an occupation,
you would need a TN visa explained further on.
* Combine
owners directing crews
*
Computer Specialists
* Customs
Brokers
*
Dentists
* Doctors
*
Engineers - An engineer from Montreal was challenged by INS for his
activities in the U.S. He was calling on businesses in the U.S., getting
work, and taking it back to Montreal where the actual work was done. INS
determined that his activities in the U.S. amounted to a sales activity
(legal) and that the work was being performed in Canada.
*
Installers, repair or maintenance personnel performing installation or repair
of imported machinery. There MUST be an existing service contract or warranty
problem. The warranty or service problem must be from the original sale of
the product. A Canadian company
cannot sell a warranty service into the U.S. and send their service
technicians into the U.S. for this new contract.
*
Interpreters
*
Investment Brokers
* Lawyers
* Market
Researchers
*
Professionals of many sorts (check with INS)
* Public
Relations Personnel
* Real
Estate Agents (only as an investment advisor / looker - this does not allow
the person to negotiate a deal except on their own account). Note, an INS
officer at Blaine did not like Realtors listed in this category in the book.
I was going to take it out, but an INS officer at Vancouver Airport thought
it was fine. This is another reason for getting a paper visa and making it
official.
After
all, it is far more likely that the INS office at Blaine has had a problem
with Realtors ducking down to Whatcom County than the airport has had with
Realtors heading to Phoenix or Hawaii. NOTE! The Realtor who does this may
find him or her self in violation of the local Real Estate Laws of the State
he or she is operating in. A
Washington State Realtor, for instance, is not allowed to come to British
Columbia and negotiate a deal and be paid because he or she is not licensed
in BC. I do however, have "dual
citizen" Realtor clients with licenses in Washington and BC.
* Sales
Agents taking orders or negotiating contracts (Note - the sales agent cannot
deliver the goods or pick up the payment for the order - payment should be
mailed to Canada by the American purchaser).
* Tour /
Travel Agents and Guides (but only with a Canadian tour which starts in
Canada - no one can join the tour once across the border).
*
Translators
* Truck
Drivers delivering or picking up goods within the U.S. (NOTE! They may not
transport goods between two U.S. points. The driver may NOT unload the
truck.)
In the
Case of a B-1, the salary must be paid from Canada and the stay is expected
to be short. Short is not defined but likely means two or three days or a
couple of months at most. Remember, if you earn money in the U.S., even if
paid by Canada, you should be filing a U.S. 1040NR tax return. If you earn
less than $10,000 U.S., you do not pay federal tax.
However, if you are working in California, even if paid from CANADA,
you must file a California 540NR and will likely be taxable.
The tax paid to the U.S. in both cases is deductible on the Canadian
Return as a foreign tax credit.
B-2 - Temporary Visitor for
pleasure
No paper
usually required or issued for Canadians, but this is what we receive
automatically as Canadians. This is a six month visa for a visitor to the
U.S. on vacation. The holder of this visa cannot work or go to school.
B-1/B-2 - Temporary visitor for Business & Pleasure under 101(a)(15)(B)
If you are going to Florida to play golf
and check out some real estate investments while there, TELL the INS officer
at the border. You will get a paperless B1/B2. Telling them you are going to
play golf when you are checking out a pre-arranged business opportunity is
illegal and can result in imprisonment and the seizure of your car, motor
home, or truck and fifth wheel trailer.
C-1 -
Alien in Transit
C-2 -
Alien in Transit to United Nations Headquarters District under Section
11.(3),(4), or (5) of the Headquarters Agreement C-3 - Foreign Government
Official, Immediate family, Attendant, Servant, or Personal Attendant in
Transit
D - Crew
Member (Sea or Air)
When I
started in this business in 1966, this was called a "VISITING SEAMAN" visa.
It is interesting because the crewman of a plane or boat may find themselves
taxable in the U.S. for the monies earned while in U.S. waters or flying over
U.S. territory when based in the U.S. [For instance, a crewperson based in
Hawaii and flying to Australia with a Canadian Airline. (Note, there is a
$15,000 exemption, but a tax return should be filed to claim the exemption).]
E-1 -
Treaty Trader, Spouse or Child under 101(a)(15)(E)(i)
The
Canadian in the States must be representing a U.S. office doing OVER 50% of
its business with Canada. The activities can include accounting, advertising,
banking, communications, data processing, designing, engineering, management
consulting, and tourism.
E-2 -
Treaty Investor, Spouse or Child under 101(a)(15)(E)(ii)
This applies to a
Canadian who is developing or directing a business in the United States
wherein the Canadian has invested substantial risk capital. The visa is for
five years and is renewable.
If the business is worth
$50,000 or less, the Canadian
should expect to put up 90 to 100% of the $50,000.
$100,000 to $500,000 businesses require 75 to 100% of the
capital to be put up. $500,000 to $1,000,000 businesses require 60% of the
risk capital to be put up by the Canadian.
If the business is worth over $1,000,000, 50% of the capital will
likely suffice. It is important
to seek competent help BEFORE making your offer to buy the business so that
the purchase is structured to take advantage of these limits.
The individual investor /
director does not need to control the company but over 50% of the company
must be owned by Canadian citizens. An E-2 may not be a "worker" unless one
of extreme specialized knowledge. He or she is only allowed to work in an
executive, managerial, or supervisory capacity unless they have superior
technical knowledge required to service complex products sold in the course
of the business's trade between the two countries.
If you are interested
in this category, phone (604) 913-9133 for a copy of my January, 1995
CEN-TAPEDE. This four-page newsletter was written by Dennis Olsen J.D., the
former U.S. Consul in Vancouver.
** None of categories
(B-1, E-1, E-2, H-1, H-2, H-3 or L-1) confer or
imply a permanent status in the U.S. They are (or should be)
instantly revoked if the
status of the employee changes (if the Canadian Company closes or if the
NATIONALITY of the ownership changes in some cases). Anyone going to the U.S.
under any of these visas should consider their situation temporary. If it is
their intention to remain in the U.S., they should start immediately through
the normal and time-consuming immigration channels.
Please note also, that the "working part" of the visa only applies to
the employee. Spouses and
children are not allowed to work in the U.S. in these circumstances. I have
also heard of their having problems with schooling costs. For instance a
school district may charge for otherwise free schooling because the parents
are not actual immigrants. Nicole Carlson from Vancouver (www.natda.org)
is presently suing the State of California because they want to charge her
$17,500 tuition as a non-resident student even though she has been there 3
years with a legitimate visa.
California went even
further in the fall of 1994 with Proposition 187.
This proposition proposed to stop the provision of "any" state
services to individuals who were not U.S. citizens. In other words, you would
"pay as you go", until you became a citizen. [Did not pass.]
My favorite story here
involves a client who went to the States under an H-2 temporary worker visa.
He had barely arrived in the U.S. when the plant he went to work at closed
down. Seeing an opportunity, he arranged to take over the premises from the
receiver and developed a successful business, which he operated for seven
years. He was then offered a lot of money for it and sold out so that he
could return to Canada and marry his girlfriend who wanted to remain in
Canada and had refused to move to the States. During this period of time, he
had never given two thoughts (he said) to his visa status, but had bought a
house in the U.S., and had come back to Canada at least 2 times a month over
the 7 years.
On his LAST official
trip to sign the papers and pick up his check, U.S. immigration pulled him in
for a routine check (something had aroused their interest). INS would
not allow him into the U.S. because he did not have a visa to conduct
business and Canada would not allow him into Canada with his U.S. registered
car because he did not have a valid U.S. visa
(As you will find out in more detail later on in this book, if you do
not have a valid visa to live in the States, you cannot drive a U.S.
registered car in Canada). It is possible to pay duty on a U.S. registered
car and drive it in Canada, but the border people really have trouble with
this. His frantic phone calls to
our office from the border resulted in a 48-hour temporary entry to the U.S.
and we arranged for the importation of the car into Canada. But we had to
find a friendly INS officer in San Francisco to allow him in.
He nearly blew the million dollar deal by not making it to the
signing.
F-1
STUDENT
Canadian students can
obtain status by presenting an I-20 from the school at the border.
The resulting F-1 visa is limited to the duration of the course and
study with an extension of up to one year available for practical training.
F-2
Spouse and children of student
Students can sometimes
apply for permanent status after two years or so.
G-1 -
Principal Resident Representative of Recognized Foreign Government to
International Organization, Staff, or Immediate Family
G-2 -
Other Representative of Recognized Foreign Member Government to International
Organization, or Immediate Family
G-3 -
Representative of Non-recognized Non-member Foreign government to
International Organization, or Immediate Family
G-4 -
International Organization Officer or Employee, or Immediate Family
G-5 -
Attendant, Servant, or Personal Employee of G-1 through G-4 or Immediate
Family
H-1A -
Registered nurse under 101(a)(15)(H)(i)(a)
H-1B -
Alien in a Specialty Occupation (Profession) under 101(a)(15)(H)(i)(b)
This is
usually used to get University Lecturers or Speakers into the U.S. The person
is usually a professional of distinguished merit and ability going to perform
a job which requires these specific qualities.
The
person must be pre-eminent in his or her field. Usually they will have a
minimum of a B.A. and there will be professional articles, newspaper
articles, significant awards, etc., which attest to the person's prominence.
Although I have no personal knowledge of this, I understand that both David
Barrett, the former Premier of British Columbia, and Kim Campbell, the first
woman Prime Minister of Canada, went to teach Politics at Harvard University
under this visa.
H-2A -
Temporary Worker Performing Agricultural Services Unavailable in the United
States (Petition filed on or after June 1, 1987) under 101(a)(15)(H)(ii)(a)
H-2B -
Temporary Worker Performing Other Services Unavailable in the United States
(Petition filed on or after June 1, 1987) under 101(a)(15)(H)(ii)(b)
H-3 -
Trainee under 101(a)(15)(H)(iii)
This
requires a formal classroom training situation with no production of product.
If actual production of a finished good is the result, it must be necessary
for the training and experience and cannot be the reason for the trainee's
visit to the U.S.
H-4 -
Spouse or Child of Alien under H-1A/B, H-2/B or H-3 under 101(a)(15)(H)(iv)
For these categories,
there must be a shortage of workers in the field. It can be used for any
occupation but the shortage of workers must be certified by the State
Employment Office where you wish to work. In addition, you must get your
Alien Labor Certification through the U.S. Department of Labor. This process
will usually take several months because the employer must have advertised
locally for some time to prove to the authorities that no local workers are
available and that you will fill the position.
Of course, if the
employer has already been advertising throughout the U.S. and Canada for
sixteen months, you may find yourself moving in two weeks.
I -
Representative of Foreign information Media, Spouse and Child under
101(a)(15)(I)
J-1 -
Exchange Visitor
J-2 -
Spouse or Child of J-1
K-1 -
Fiancé(e) of United States Citizen
K-2 -
Child of Fiancé(e) of United States Citizen
L-1
INTRA-COMPANY TRANSFEREE (Executive, Managerial, and Specialized
Knowledge Personnel Continuing Employment with International Firm or
Corporation under 101(a)(15)(L)
This is the best of the
visas in the long run and the one which has the best chance of bestowing
permanent status (green card) in the U.S. on the visa holder. On the other
hand, it is not permanent either.
It is issued in two year increments with a seven-year cap for managers
and executives and a five-year limit for specialized knowledge employees. New
business employees only receive a one-year visa to start.
The problem is that a new
person appointed as a BOARD MEMBER may not qualify because:
To qualify for an L-1,
the person must have been employed in a managerial, supervisory, or extremely
technical and necessary position with the parent company for
at least one year prior to the transfer. (Note, since this was
originally written, the rule has changed to allow someone who has left the
company's employ to use prior employment with the company to qualify.)
The transfer must be to
work in or establish a branch of the parent company and the visa holder must
continue in that managerial, supervisory or highly technical role.
In addition, the Canadian
company must remain in business in Canada. The transfer cannot be the result
of the closing of a Canadian branch or company.
With this visa, the visa
holder can continue to work in both countries and move back and forth at
will. He or she may be paid by the U.S. or Canadian Office. However, the visa
holder must be WORKING in the U.S., not just attending meetings or training
sessions, etc. The visa holder must also pay tax on his or her earnings in
the U.S. even if the money is paid by the Canadian company. Because of the
Foreign Tax Credit, if the monies are being paid by a Canadian company and if
the employee is still taxable in Canada because his or her family is still in
Canada, it will be necessary to file both U.S. and Canadian federal income
tax returns. It might also be
necessary to file a Quebec return if the family is in Quebec and of course,
if the work is in one of the 43 states, which require a state form to be
filed, one would have to file that (or those) state's income tax returns. (A
sports figure like Wayne Gretzky has to file a return for each state he plays
a game in, makes a public appearance in or can be shown to work in.) With
foreign tax credits, there is not usually any tax to pay.
Canadians going south
make a decision on tax based upon the federal rate and forget about the
variable state, city, and even
"county" income taxes in some places. (New York City and Grand Rapid
residents pay income taxes to the city, the county, the state, and the
federal governments. They also
forget to add in the cost of garbage, schooling, libraries, car licenses and
medical coverage, which are traditionally higher because the "INCOME TAX IS
LOWER." As an example, a car license, which is $41 Canadian in Canada, can be
$450 U.S. for a $15,000 car in the some states.
The State of Washington has cancelled this tax recently.
U S Companies with
Canadians sitting on their boards as directors.
My last edition of this suggested that there was a problem with a
Canadian attending board meetings of an American Company in the USA.
I asked Terry Preshaw this specific question on CFUN and although she
was unsure when I asked the question managed to find out the answer during
one of the breaks. Section
214.2(b) of the operating Instructions manual clearly allows Canadian Board
Members of an American Company to attend board meetings of the American
Company within the USA. If you
are a board member, remember this and have it written somewhere on your
person. A letter from your
American Company inviting you to the Board Meeting and stating the clause you
are admissible under would also be handy to have in your documentation.
I bring this up because I
have heard of many instances when INS has turned board members back at the
border officers at airports.
Board members have been in the habit of saying they are going on vacation or
on a selling trip or some other white lie to avoid confrontation.
Under the new "EXPEDITED REMOVAL" rules, if the INS officer feels you
have lied to him or her, he or she can ban you from the US for 5 years with
no appeal process. If the same
officer changes their mind twenty minutes later and sees you walking through
the airport, they cannot cancel their ruling. and as Ronald Hays, Chief of
Inspection Operations for the INS at Seattle, Vancouver, Alaska, etc., said
on May 18, 2000 at a Vancouver seminar put on by the BCISIT (British Columbia
Institute for the Study of International Trade), "It does not matter how
wrong I think an agent was to ban someone, I can't reverse the decision".
L-2
Spouse and Children of Intra-company Transferee
M-1 -
Vocational Student or Other Nonacademic Student
M-2 -
Spouse or Child of M-1
N-8 -
Parent of an Alien Classified SK-3 Special Immigrant under 101(a)(15)(N)(i)
N-9 -
Child of N-8 or of an SK-1, SK-2, or SK-4 Special Immigrant under 101(a)(15)(N)(ii)
NATO-1,
2, 3, 4, 5, 6 and 7 - Delegates and Members of their Families to the North
Atlantic Treaty Organization
O-1 -
Alien with Extraordinary Ability in Sciences, Arts, Education, Business, or
Athletes under 101(a)(15)(O)(i)
O-2 -
Accompanying Alien
O-2 -
Spouse or Child of O-1 or O-2
NOTE - Most Visas have to be applied for by the company or organization
requesting the services of the worker, or student, etc.
The following "P" classification visas can be applied for by the
individual themselves.
P-1 -
Internationally Recognized Athlete or Member of Internationally Recognized
Entertainment Group under 101(a)(15)(P)(i)
P-2 -
Artist or Entertainer in a Reciprocal Exchange Program
P-3 -
Artist or Entertainer in a Culturally Unique Program
P-4 -
Spouse or Child of P-1, P-2, or P-3
Q-1 -
Participant in an International Cultural Exchange Program
R-1 -
Alien in a Religious Occupation under 101(a)(15)(R)(i)
R-2 -
Spouse or Child of R-1
The
following S Classifications were added September 13, 1994 when President
Clinton signed the Violent Crime Control and Law Enforcement Act of 1994.
S-1 -
Certain Aliens Supplying Critical Information Relating to a Criminal
Organization or Enterprise
S-2 -
Certain Aliens Supplying Critical Information Relating to Terrorism TC TREATY
CANADA - This visa no longer exists - It was replaced by the TN
Classification under 214(e)(2) on visa below
My particular thanks
here to Michael Jacobsen [(604) 608-8787] who sent me 7 pages of suggestions
for my update from TREATY CANADA to TREATY NAFTA rules. Michael is a licensed
lawyer in BC and Washington State and a member of the American Immigration
Lawyers Association.
On December 8, 1993,
President Clinton signed the NAFTA Agreement, which took effect on
January 1, 1994 under 101(a)(15).
TD -
Spouse or Child of NAFTA Professional under 214(e)(2) (TN holder)
TN -
NAFTA Professional - (North America Free Trade Agreement) PROFESSIONAL
BUSINESS PERSON
A professional is defined
as a person with a minimum of a bachelor's degree, who applies for a
position, which requires a degree as its minimum entry-level requirement
unless otherwise specified.
This
is the one we heard about in the news. To meet this classification which is
unique to Canadians, you must have a bone fide job offer and all licenses and
degrees in place for your profession.
CHECK
LIST for the TN Visa
* An applicant for
admission must establish Canadian citizenship
* The applicant
must be entering the United States to engage in a profession or occupation at
a professional level under NAFTA
* The applicant
must be in possession of an offer or contract of employment from a United
States employer stating:
1)
The professional activity to be engaged in
2) Purpose
of entry
3)
Remuneration
4)
That the position is temporary in nature and will not exceed one year
(although it can be renewed)
* The applicant must provide
documentation of his or her educational degree or professional qualifications
* The applicant must meet all
licensing requirements
* Employment need not be full-time
* Permanent residence abroad is not a
prerequisite
* Maximum period of admission of a TN
is one year
* TN dependants accompanying the
principal TN will be admitted under the "TD"
classification for the same amount of time as the principal
* A $56 U.S. fee is required ($85.00
for renewal by mail)
* TN
applicants are not permitted to enter as a professional to participate in any
way to circumvent a strike
*
SELF EMPLOYMENT IS NOT PERMISSIBLE
The following is a
partial list of some who qualify under a TN Visa. Please note that extensive
experience can equal a degree in many cases. All need a Bachelor or
Baccalaureate degree unless otherwise noted. In some cases, 3 or 4
years of practical work in a discipline can count for one year of a
University degree. Therefore if
the University BA requires 3 years, you need 9 or 12 years of work experience
to qualify.
*
Accountants - RIA or SIA or CPA or CGA or CMA or CA
**
Actuaries (this is one of two classifications added since 1989)
*
Agriculturalists
*
Agronomists
* Animal
Breeders
* Animal
Scientists
*
Apiculturist
*
Architects - BA or state / provincial license
*
Astronomers
*
Biochemists
*
Biologists
*
Botanists
*
Chemists
*
Computer Systems Analyst - BA or Post-secondary Diploma or Post-secondary
certificate and three years of practical experience. This does not get you to
the USA, if your job is programming a computer.
An Analyst might spend a day a month working on some modifications (in
a testing mode for instance), but they better not be thought of as a
"programmer" within the company.
**** Computer Software Engineer *** This is NOT here as an approved
occupation. However, Jackie
Bednarz (US head of the NAFTA Section 16 Working group in Washington stated
specifically that if a recognized University was to offer the degree, she
would consider computer software engineers under the ENGINEER classification
when a recognized University granted the degree.
My understanding is that SFU and McGill are now granting such degrees
and that the Professional Engineers of British Columbia have recognized
graduates as members of their professional society.
Note that TC and TN's were being granted for this category on a
sporadic basis until the INS realized that no such "official" degree
existed.
Jackie Bednarz also
pointed out (She was part of the original negotiating team when the original
FTA (Free Trade Agreement) was being negotiated in 1985, 86, 87 and 88, there
was no such thing as the INTERNET, "web masters" and "web sites". When
negotiating the job titles, no thought was given to the computer revolution,
other than the computer system analyst designation, which at the time meant a
main frame analyst for a $1,000,000 computer.
(Thanks to Stuart Lynne
and Richard Pitt) (www.fireplug.net), the CEN-TA Group was an official member
of the internet as far back as 1986 and thanks to Bill Gates himself (he told
me to use Microsoft Xenix as my operating system) and Radio Shack Model 16
computers, CEN-TA was using "email" between offices in Toronto, Ottawa and
Vancouver as early as 1983.
As another aside, Stuart
Lynne and Richard Pitt went on to found WIMSEY, the FIRST ISP in CANADA. Bill
Gates became quite famous as well.
* Dairy
Scientists
*
Dentists - DDS, DMD, or state / provincial license
* Dental
Technicians
*
Dietitian
*
Disaster Relief Insurance Claim Specialists - (claims adjuster
employed by an insurance company located in the territory of a party or an
independent claims adjuster) - BA and successful completion of training in
the appropriate areas of insurance adjustment pertaining to disaster relief
claims; or, three years experience in claims adjustment and successful
completion of training in the appropriate areas of insurance adjustment
pertaining to disaster relief claims
* Doctors
- (see physician further on)
*
Economists
*
Engineers - BA or state / provincial licensing
*
Entomologists
*
Epidemiologists
*
Forester - BA or state / provincial licensing
*
Geneticists
*
Geochemist
*
Geologist
*
Geophysicists (including
Oceanographer in the United States)
* Graphic
Designer - BA or post-secondary diploma and three years
experience.
* Hotel
Managers - BA in hotel / restaurant management; or,
post-secondary diploma or post-secondary certificate in hotel / restaurant
management and three years experience in hotel / restaurant management
*
Horticulturist
*
Industrial Designer - BA or post-secondary diploma or post-secondary
certificate and three years experience
*
Interior Designer - BA or post-secondary diploma or post-secondary
certificate and three years experience
*
Journalist BA plus three years experience - (This category is no longer valid
and has been left in to explain the circumstances. As I understand it,
journalists in general took it as an insult that they had to have a BA
degree, because, "most, if not all," of the best known journalists do not
have a BA degree.)
* Land
Surveyor - BA or state / provincial licenses
*
Landscape Architect
* Lawyer
(including notary in the Province of Quebec) - LLB, JD, LLL, BCL degree (five
years); or membership in a state or provincial bar
*
Librarians - MLS or BLS (for which another BA was a prerequisite)
*
Management Consultants - BA; or equivalent professional experience as
established by statement or professional credential attesting to five years
experience as a management consultant, or five years experience in a field of
specialty relating to the consulting agreement.
I must make it clear here.
A Management Consultant is NOT a manager.
The surest way to lose your management consultant renewal is to show
up at the border with a business card with the title General Manager, Western
Region, or Human Resources Manager, or, or, or.
A management consultant could consult
with the actual sales manager about sales techniques or about selling into
Canada. A management consultant
could be advising the actual human resources manager in hiring techniques or
even suggesting that one candidate is a better fit than another one.
A management consultant can do market research, gather and assemble
data and write a report to give to the manager. This is likely the hardest TN
visa to get but is also a very important one when it comes to serving the
needs of the US company.
Note that the management
consultant does NOT need a degree, just five years experience.
This is the perfect job description for the person with 23 years of
job experience who has never gone through the formal process of getting a
university degree in the discipline.
*
Mathematician (including statistician)
* Medical
Laboratory Technologist (Canada) / Medical Technologist (U.S.) - BA; or
post-secondary diploma or post-secondary certificate and three years
experience
*
Meteorologist
*
Nutritionist
*
Occupational Therapist - BA; or state / provincial license
* Organic
Chemist
*
Pharmacologist (Pharmacist) - BA; or state / provincial license
*
Physician - (teaching or research only), MD or state /provincial license. To
work as MD, a doctor must pass his MLE (medical licensing exam), which has
three, parts written over a year.
After passing, he or she would enter the U.S. under an H-1A.
*
Physicist (including oceanographer in Canada)
*
Physiotherapist/Physical Therapist - BA; or state
/provincial license
* Plant
Breeder
** Plant
Pathologists (This is one of two professions added since 1989)
* Poultry
Scientist
*
Professional (most recognized professions)
*
Psychologists - state / provincial license
* Range
Conservationist
*
Recreational Therapist
*
Registered Nurse - state / provincial license
*
Research Assistant (working in
post-secondary educational institution)
- *
Scientific Technician - Possession of: (a) theoretical knowledge of
any of the disciplines: agricultural sciences, astronomy, biology, chemistry,
engineering, forestry, geology, geophysics, meteorology, or physics; and (b)
the ability to solve practical problems in any of those disciplines, or the
ability to apply principles of any of those disciplines to basic or applied
research.
* Social
Worker
* Soil
Scientist
*
Sylviculturist
*
Teacher (College, Seminary, or University) (Post Secondary level only)
*
Technical Publication Writer - BA, or post-secondary diploma or
post-secondary certificate, and three years experience
* Urban
Planner (including geographer)
*
Veterinarian
*
Vocational Counselor
*
Zoologist
SUBJECT TO CHANGE
This list is subject
to change at any time. When talking to Dennis Olsen about updating the rules,
I mentioned a nurse who had found out that nurses could go south instantly in
the late 1970's. She got a job
offer from a Hawaii hospital, came back to Vancouver, quit her job, sold her
house, kicked out her husband, gave away the dogs and showed up at the
airport to move to Hawaii, only to find out that they had closed the quota
for nurses.
And then,
as I was writing this exact section of the book in March, 1995, I received a
call from a Doctor who had a job offer from the U.S., sold his house and
Canadian practice, only to be told that he did not qualify when he showed up
at the border because although a practicing family physician in Canada and
fully qualified to go south with a Green Card (a resident alien immigrant
visa), he did not qualify as a TN (can only teach or do research) and he did
not qualify as an H-1B because he had not written an MLE. This medical
licensing exam is written in three stages over a one year timetable.
I guess he has to sue his immigration attorney in Los Angeles.
This attorney knew he did not have his MLE, but charged him
significant monies and told him he could get in now!
Remember, NONE of the foregoing confers permanent status. For permanent
status, you must still stand in some sort of line.
However, it seems to be true that if you are in the U.S. as a TN or as
a L-1, your line moves much faster than if you start from out of the country.
W A R N I N G
March
8, 1995 - When a Canadian leaves Canada to move to the U.S., there is a
departure tax. This means that
all of the Canadian's assets are deemed "to have been sold" at fair market
value the day before he or she leaves. If there are "paper profits," tax is
due on this paper profit although a bond may be posted. The United States did
not have this departure tax because the U.S. citizen has to keep on filing
U.S. FEDERAL INCOME TAX RETURNS while out of the country for as long as they
remain a U.S. citizen. If they gave up their citizenship, they could own a
million dollars worth of assets that they had paid a dollar for and their
"paper profit" would have just disappeared into the mist. Section 352 of the
new Legal Immigrant and Illegal Immigrant Responsibility Act of 1996 states
that the U.S. Citizen who gives up their citizenship to avoid U.S. income
taxation is also banned from ever returning to the U.S. for any purpose.
NO LONGER!
On February 6, 1995 a
departure tax was passed for U.S. citizens giving up their citizenship. This
means that when a U.S. citizen gives up their citizenship, they are taxable
as if they sold everything and died the day they give up their citizenship
and there will be a departure tax on their world wide assets.
As of today, March 8, 1995, I have no idea what the form will look
like. The U.S. also continues to
tax the income of its ex-citizens for ten years after they give up their
citizenship if the reason for giving up the citizenship was to avoid U.S.
income, gift, and estate taxes. And the question is why would anyone give up
U.S. citizenship for any reason other than to avoid income, gift and estate
taxes?
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