QUESTION:
What work visas are available for Canadians to work in
the United States?
David Ingram replies:
I have taken this from www.centa.com and the ENTERING
THE USA section which you can find in the second box
down on the right hand side.
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
If you are going to the US, is a VISA Necessary?
Working?
Business Trips in General
Criminal Record
Time
What Type of VISA is Necessary?
TN Visa Check List
Warning
-------------------------------------------------------
-------------------------
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
+1-604-980-0321
The following are some warnings first!
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).
Back to Top
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.
Back to Top
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
Scotia 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 Nielsen, 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.
Back to Top
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 favourite 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. In general, anyone who qualifies for a TN
visa would qualify for an H1B.
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 - Note that
this visa can be processed in Vancouver. To go as a
spouse means processing in Montreal.
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.
(Therefore, if you are a board member of a US
corporation, one would go as a B-1 status up to 6 times
a year.) 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".
Back to Top
L-2 Spouse and Children of Intra-company Transferee
M-1 - Vocational Student or Other Non-academic 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
Back to Top
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.
Back to Top
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.
Back to Top
* 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.
Back to Top
* Dairy Scientists
* Dentists - DDS, DMD, or state / provincial license
* Dental Technicians
* Dietician
* 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 Counsellor
* 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.
Back to Top
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?
Copyright © 1996-2004 david Ingram
Updated December 27, 2004, All rights Reserved
Looking for Cross-border help?
You're in the right place
NAFTA Consultation on Visas, Taxation, Immigration,
Cross Border, Canada, USA, Mexico
Call (604) 980-0321 for a phone consultation - $350 per
hour Canadian
Answers to this and other similar questions can be
obtained free on Air every Sunday morning.
Every Sunday at 9:00 AM on 600AM in Vancouver, Fred
Snyder of Dundee Wealth Management and I, David Ingram
will be hosting an INFOMERCIAL but LIVE talk show
called "ITS YOUR MONEY"
Those outside of the Lower Mainland will be able to
listen on the internet at
www.600AM.com
Local calls are taken at (604) 280-0600 and Long
Distance calls are taken at 1( 866) 778-0600
I do not know how far the LD line reaches.
=========================================
This from "ask an income tax and immigration expert"
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