Entering The US

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.

In this document:


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:

 

 

 











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).

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     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.

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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).

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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. 

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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.

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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.

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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.

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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.

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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.

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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)

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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.

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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)

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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 - Fianc?(e) of United States Citizen

K-2 - Child of Fianc?(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)

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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".

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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

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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. 

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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. 
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* 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.
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**** 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. 
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* 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)
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* 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)
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- * 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
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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.
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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.
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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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Last Updated Tuesday, July 06 2010 @ 11:37 AM PDT|33,906 Hits View Printable Version