FAQ: Canada to U.S. Immigration for Businesses and Professionals

## FAQ-Frequently Asked Questions: Canada to U.S. Immigration for Businesses and Professionals

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## QUESTIONS

1. What is this FAQ all about?

### Temporary Permits

2. We have a Canadian Landed Immigrant employee--not a Canadian Citizen. Any special privileges?
3. I have been offered a 4-month contract in the U.S. What type of visa do I need?
4. Is there a minimum number of days an L-1 holder can stay in the U.S. every year?
5. Is it possible, once someone has been working with a TN visa for some time, to change status to allow a spouse to work?
6. Can I renew a TN visa at the border or should I renew by mail?

### Transition: Temporary to Permanent

7. If I file my green card application, would it cause trouble when I renew my TN visa?
8. Is there a future for a TN visa Holder?
9. I'm going to get my TN soon. How long should I wait before applying for my green card?
10. How can I change from an L-1B to a Green Card?

### Permanent Green Cards and Citizenship

11. Can I use the National Interest Waiver to avoid an individual Labor Certification for my Green Card?
12. How can I keep my Green Card while working abroad?
13. Can someone hold a dual citizenship, U.S.A. and Canada?

### Mechanics

14. Why should we go through the hassle of hiring a Canadian for the job?
15. How can I convince the employer to sponsor me?
16. Can I keep both,the U.S. Green Card and Canadian Landed Immigrant status?
17. My company feels that a Green Card is a passport to leave and are "sitting on the fence" as fas as helping me. What can I do?
18. Do I need A lawyer?
19. Do I need a local lawyer?
20. Can I make it go faster?

### Links to Other FAQs

21. How much will it cost? (This link will take you to another Web page: FAQ: Frequently Asked Questions: Business Immigration Legal Fees. Don't forget to return to this page when you are finished.)
22. Our manager was stopped at the border!--What should we do? (This link will take you to another Web page: FAQ: Stopped by INS at the Canada/U.S.A. Border!---What to Do? Don't forget to return when finished.)
23. Social Security---Removing the Mysteries. (This link will take you to another web page: U.S. Social Security Number for Canadians - FAQ To Remove The Mysteries. Don't forget to return to this page when you are finished.)

Return to the list of questions at the top.

## ANSWERS

1. What is this FAQ all about?

Here are questions and answers about U.S. immigration---just for Canadians. This page is part of the Web site: U.S. Immigration for Canadian Businesses and Professionals maintained by the Law Office of Joseph C. Grasmick.

These are actual questions from Usenet Newsgroups and from private E-mail questions to our office. Newsgroups surveyed include the two most relevant:

- alt.visa.us
- misc.immigration.usa

Others are:

- can.legal
- misc.immigration.canada
- misc.immigration.misc

We glean the Newsgroups to save you the trouble. The Usenet postings contain many nuggets of useful information. To get those nuggets you must regularly read a tremendous amount of material. This is because most visitors to the U.S. are not Canadian and most Usenet questions do not deal with special issues facing Canadians. For example, only Canadians can get L-1 and TN-1 permits at the border and on the spot. Also, most Usenet contributors are not specifically interested in the business visas.

After selecting the questions, we then evaluate the posts' accuracy and relevancy. We edit the material for conciseness, clarity and relevance.

You may also wish to refer to frequently asked questions about legal fees. These extensive questions deserve their own FAQ on another Web page.

Return to the list of questions at the top.

2. We have a Canadian landed immigrant employee---not a Canadian citizen. Are there any special privileges?

ANSWER: Yes.

Here are special privileges for different groups:

Canadian citizens only:

- Eligible for TN-1.
- Can get L-1---at the border.
- Can get permanent Canadian commuter status. (Read about commuter status in the Canada-U.S. Business Immigration Handbook. )

Try the interactive visa selector to find the quickest and easiest option for your Canadian citizen employee.

Canadian citizens and Canadian Landed Immigrants:

- Canadian citizens and Canadian Landed Immigrants from certain countries do not need a passport visa for most work permits. (A passport visa is a stamp from the U.S. Consulate.) These employees will still need the appropriate work permit on form I-94. Visa exempt Landed Immigrants must be citizens of these countries:

- Antigua
- Australia
- Bahamas
- Bangladesh
- Barbados
- Belize
- Bermuda (British subjects)
- Botswana
- Brunei
- Cyprus
- Dominica
- Fiji
- Gambia
- Ghana
- Greneda
- Guyana
- India
- Ireland
- Jamaica
- Kenya
- Kiribati
- Lesotho
- Malawi
- Malaysia
- Maldives
- Malta
- Mauritius
- Nauru
- New Zealand
- Nigeria
- Pakistan
- Papua New Guinea
- St. Kitts and Nevis
- St. Lucia
- St. Vincent
- Seychelles
- Sierra Leone
- Singapore
- Solomon Islands
- South Africa (Information is tentative...needs to be confirmed)
- Sri Lanka
- Swaziland
- Tanzania
- Tonga
- Trinidad and Tobago
- Tuvalu
- Uganda
- UK (including colonies, territories, and dependencies, such as Hong Kong or Bermuda)
- Vanuatu
- Western Samoa
- Zambia
- Zimbabwe

Anyone else:

- Eligible for most visas, except TN-1
  - TN-2 for Mexican's only.
  - E-1, E-2 only if country of citizenship has the appropriate treaty with the U.S. (There is a treaty with Canada.)
  - L-1 by mail only. No border applications.
  - B-1 for six months, instead of one year NAFTA maximum. (May be exempt from B-1 passport visa requirement, if there is a visa waiver program for the country of citizenship.)

Ask us if Canadian citizenship would make it easier to get a U.S. work permit for your employee. If you have Canadian landed immigrant staff consult with a Canadian immigration lawyer. You may be able to expedite Canadian citizenship.

Return to the list of questions at the top.

3. I have been offered a 4-month contract in the U.S. What type of visa do I need?

ANSWER: In some cases, you may not need a work permit. B-1 Visitors for Business can do many things in the U.S. that look like "work". For example, you can come to the U.S. to install, service and train if the services relate to sales of Canadian-made software.

There are three different ways to facilitate B-1 status for Canadian citizens:

1. The "smile and a wave" method. Just state the purpose of your trip when you travel to the U.S., or
2. The "official looking letter" method. Have your Canadian employer prepare a letter stating the purpose of your trip, or
3. Arrange for creation of a form I-94, with B-1 status. You can use this form for subsequent entries into the U.S. (Canadian citizens do not have to give up this form when they leave the U.S. for Canada.)

The B-1 is not a work permit. If you do need a work permit, first try the TN. It's quick. You get it right at the border. Employers and clients love it, especially if they're used to going through the time-consuming H-1 paperwork. I've seen many Canadians go through the H-1 paperwork unnecessarily.

To get the TN, your profession must be on the NAFTA-TN list of professions.

If your profession is not on the TN list, you may need the H-1. You need to first apply to the labor dept. Then, apply to the INS. You pick up your I-94 at the border. (Canadians do not need passport visas.)

Once you get into the H-1 and other permits, costs in time and hassle increase. You may find that the expense isn't worth the revenues generated by a four month contract. In these case, try to make the B-1 work.

Return to the list of questions at the top.

4. Is there a minimum number of days an L-1 holder must stay in the U.S. every year?

ANSWER: Good question. Many people look at the name of the visa, "The L-1 Intracompany Transferee", and say "It's not for me...I'm not being transferred to the U.S." They feel it's not for part-time work.

This is a misconception.

The L-1 temporary work permit is very flexible. You can come to the U.S. part-time or full time.

In fact, as long as you are performing services for the U.S. subsidiary, you can still be paid through the overseas parent. (Of course, you can be paid from the U.S. subsidiary, if you'd like. The INS may find it easier to deal with, if your salary comes from the U.S. subsidiary.)

Savvy human resource managers use this permit to cut expenses. I have seen forward-thinking companies:

- assign one experienced Canadian sales rep to cover a combined contiguous cross-border geographical area...instead of hiring another U.S. rep.
- hire one VP for human resources to manage both Canadian parent and the U.S. subsidiary
- equip one team of technical service specialists with work permits. The team can be on call to service either U.S. or Canadian customers.

Once you get your green card on the priority worker transferee category, you must then intend to work full-time in the U.S. Even then, though, extensive travel to assist the parent company abroad is allowable. (The priority worker transferee green card requirements are similar to those of the L-1.)

Incidently, Canadian tax accountants tell me that this flexibility allows for some excellent tax planning opportunities for Canadians...especially during the first year of L-1 status. If you need such an expert, refer to the list of international specialists.

Return to the list of questions at the top.

5. Is it possible once, someone has been working with a TN visa for some time, to change status to allow a spouse to work?

ANSWER: No problem. You can change your status to permanent residency, in which case your spouse would be able to work on her green card.

Your spouse could also change from TD (dependent of a TN) to a temporary working visa. This is the same for L-2 (L-1 dependent), E-4 (E-2 dependent) and H-4 (H-1 dependent) spouses.

In the NAFTA agreement, the Working Group's mandate is to move towards allowing TD's to work, without having to find an employer sponsor. This is not reality yet. I will let everyone know when (and if) it happens. Keep the What's New page on your browser hotlist.

The issue of spousal employment is a big one. It's the "human resource issue of the 90's". Here are some options:

- Get your green card. The entire family then gets Green Cards and work permission automatically.
- The spouse gets his or her own work permit. You already know about the TN. There are also the H-1 and other permits. Chapter 6 of the Canada-U.S. Business Immigration Handbook is devoted to "Spouses and Families".
- Study. TD's can study. This is a way to productively spend time while waiting for the green card.
- Volunteer Work. This is a popular option for our clients. It must not be the type of work for which people are usually paid. Also, there should be no indirect form of reimbursement (expense account, provision of a vehicle, etc.) that the INS could view as wages. Be sure to check with the Dept. of Labor to ensure that the volunteer work does not fall under Labor Department minimum wage requirements.
- TD spouse Lives in U.S. and Commutes to Work in Border Community. If you live in a border area, the spouse can live in the U.S., while commuting to work to Canada. This often enables family members to continue to work in Canada while living in the U.S.
- The TD spouse continues to live and work in Canada. In a number of cases, the spouse continues to live and work in Canada. The principal L-1, TN or H-1 lives and works in the U.S., often splitting his or her time between the U.S. and foreign homes. It is perfectly permissible for the employee working in the U.S. to split time in this way. This, of course, requires spending time apart, but there are quite a few of our clients who have done this.

Summary: The best solution for most of our clients is the first option---get the Green Card fast.

Return to the list of questions at the top.

6. Can I renew a TN visa at the border or should I renew by mail?

ANSWER: Either way is fine.

You can extend your TN OR L-1 stay in two ways:

1. Appear at the border
2. Mail in your extension application

There are advantages to each approach. By comparing the number of entries on these two lists, you'll see my favorite approach of the two:

Advantages of Renewing By Mail:

- You don't have to make a trip to the border. You can do everything from the comfort of your home/office.
- You don't have to take your family to the border. (Remember, your family needs to renew their TD's or L-2's before they expire, too.)
- With foresight, you can mail well ahead of the expiration date. You'll get the approval (or a kickback you can respond to) well before you need it.
- No tough face-to-face questions from an inspector.
- Results are more predictable. INS Regional Examiners do nothing but review mailed applications all day. Border Inspectors wear a variety of hats.
- If there's a problem, you're in the U.S. and can fix it. You can keep working while your application is pending. If you're applying at the border, you'll be sitting on the wrong side of the bridge (or you'll miss your flight) while scrambling for the missing piece of paper.
- Less stress. Travel can be stressful enough, without having to worry about an afternoon at the airport or bridge.

Advantages of A Border Application:

- You can wait until the last minute---if your paperwork is perfect
- No form I-129 or I-539 is necessary. The I-129 mail-in form asks if your employer has ever filed a permanent immigrant petition on your behalf. This could raise questions about whether you have the "temporary" intent required for TN status. See the question on this page about the effect of prior green card filings.
- Some borders and people there have good expertise. See the Peace Bridge page for an example of such a place.

Return to the list of questions at the top.

7. If I file my Green Card application, would it cause trouble when I renew my TN visa?

ANSWER: No. Not if you plan your strategy.

Thanks to the wonderful "doctrine of dual intent," you can have both the intent to remain in the U.S. on a temporary and permanent basis---at the same time. (Who said law isn't flexible!) Therefore there's no problem having a green card application pending while you are renewing your temporary TN status.

The regulation for L-1's and H-1's state what you need to show if you are renewing your permit and have a permanent application pending. To be safe, you should be prepared to show the same things for TN renewal. RegistserElectronic Newsletterto be automatically advised of new developments.

This dual intent doctrine is in the regulations for L-1 and H-1 permits, but is not written anywhere for TN's. Right now, the INS treats TN's under the same doctrine. This could change.

Special Advantage to Canadians

Also note that may TN Canadians help their cases by traveling to Canada frequently. This means that if you are making a trip to Canada before getting your green card, your entry into the U.S. is "temporary" even if you have a green card application pending.

By Mail vs. at the Border

There is no form to fill out for the initial TN visa application. There is no requirement to disclose any pending green card applications. The Free Trade Officer would have to ask specific questions or take special efforts to check the computer. Right now they are not particulary interested in this issue. The TN is the main permit we handle, and I've only received one comment from an officer regarding permanent intent since the CFTA and NAFTA.

The inspector will be more likely to ask questions about pending green card applications the longer you stay on TN status. (Incidently, if you are asked any questions, always tell the truth.)

If you "renew" your TN at the border, there is no form, but if you renew by mail there is a form which asks if your employer has filed an immigrant petition for you.

(See other questions in this FAQ about mail versus border renewals.)

Practical Pointers

Here are some strategies to minimize intending immigrant problems:

1. Show H-1 and L-1 type dual intent:
   - employment goals fit within the time period requested
   - the temporary permit is not for principal purpose of entry in advance of immigrant visa availability
   - will transfer abroad if employee doesn't have permanent status before extension period expires
   - prior history of little use of foreign workers in temporary/permanent status
   - no prior use of illegal aliens
   - employment bona fide-not an accomodation
   - established program for rotation of personnel exists
   - position abroad to use for employee when temporary U.S. assignment ends
   - employee not stockholder. If stockholder, show a record of international entrepreneurship
   - employee has history of maintainingcorrect U.S. immigration status
   - beneficiary's history of employment status, esp. prior employment overseas
   - employee could reasonably continue career outside of U.S. after period requested ends
   - emphasize "temporary" elements in the TN job duties with a finite completion date
2. Get your green card before you have to renew your TN. Many readers delay green card applications fearing TN renewals will be jeopardized. Ironically, the longer the wait, the greater the danger. Have your employer contact us to begin the process.
3. Set up a job with a temporary mission to complete on TN status. Set up another prospective job description for your permanent residency application.
4. Maintain a residence in Canada. See the question in this FAQ about returning green card residents. That question gives you ideas for links you can show to Canada (That question shows links to the U.S. for green card holders. Just reverse the links--- show them for Canada).
5. Oursource scheduling and documenting your applications to a business immigration lawyer.

Return to the list of questions at the top.

8. Is there a future for a TN visa holder?

ANSWER: There is no top limit on the number of years a person can be on temporary TN status. Nevertheless, I expect that some day INS will say "no more renewals...after all, this is a temporary visa." Review current developments regularly for any news on this.

Go for your green card if you're going to be in the U.S. for a while.

Return to the list of questions at the top.

9. I'm going to get my TN visa soon? How long should I wait before applying for my Green Card?

ANSWER: You can apply for permanent residence whenever you like. Because of long processing times, you should start assembling the paperwork ASAP.

Return to the list of questions at the top.

10. How can I change from an L-B1 to a Green Card?

ANSWER: If you acquired your L-1 based on specialized knowledge (an L-1B), I would consult with a lawyer to see if you can avoid an individual labor certification. Normally people who use the "specialized knowledge" category cannot qualify, but there may be a way to do it depending on your facts.

People on L-1A's (managers and executives) can, on the other hand, easily switch to permanent residency through the priority worker green card category.

You can get this green card at the "speed of light." (Note that the speed of light measured by government paperwork standards, is not quite the same as the actual speed of light!)

These green cards have two additional requirements not present in L-1 rules:

- you must be a manager or executive (specialized knowledge is not enough), and
- the U.S. subsidiary must be doing business for at least a year (new start-up companies do not qualify).

Return to the list of questions at the top.

11. Can I use the National Interest Waiver to avoid an individual Labor Certification for my Green Card?

ANSWER: The National Interest Waiver is a nice way to get out from under the infamous labor certification.

If you have a Master's degree look into this. Even if you only have a Bachelor's degree, substantial employment experience can substitute for the missing academics.

What does national interest mean?

There are no clear rules.

This is both good and bad. It's good, because you and your lawyer have a good deal of latitude in showing that you fit into the category. It's bad, because you don't get a clear advance picture of where you stand.

Here's some new information that may help. This is official information from the INS Northern Service Center:

> To qualify for an exemption from the requirement of a job offer, and thus of a labor certification, you must submit Form ETA-750B, "Statement of Qualification of Alien" in duplicate and evidence to support your claim that such exemption would be in the national interest.

> Factors that may be considered in determining national interest include but are not limited to improving the U.S. economy, improving health care, improving education and training programs, creating employment opportunities, improving wages and working conditions, improving the environment, improving cultural awareness and diversity through artistic endeavors, and significant scientific contributions.

> The evidence should establish the significance of the program or activity in which you are engaged and the significance of your participation in the program or activity. What consequences would occur of you were unable to begin or continue your participation in the activity? What have you already accomplished in the field? How would your participation in the program or activity have a greater impact than others in the field? You may submit letters from recognized national experts in the field explaining how your participation would benefit the national interest. If there is an interested U.S. government agency, submit a letter from an official of that agency.

> There are no official guidelines for national interest waivers. We have copies of several previous AAU decisions and often refer to them for guidance.

Return to the list of questions at the top

12. How can I keep my Green Card while working abroad?

ANSWER: Many people ask this, for example:

- Green Card holders, working for a U.S. company, transferred to an Asian division
- executives laid off by restructuring, returning to Canada to work
- employees of multi-national organizations, who are needed back in Canada

Your job situation is becoming common as our economy becomes internationalized.

You shouldn't have a problem, if you take some advance steps.

Here are a few. Also, check section 4.6 of the Handbook.

- Apply for a Returning Resident permit. This will create a presumption in your favor, should your green card status ever be challenged. Even though the instructions on the form say that the Returning Residency permit is for those who are leaving the country continuously for more than 1 year, file it anyway---even if you'll visit the U.S. before the year is up. You can use form I-131 from the Handbook. Also look into filing for the little-known "Advance Application for Preservation of Residency for Naturalization Purposes."
- Always file a 1040 income tax residents form, not a 1040NR. As we say in our office: "A 1040NR is an 'N-O' " There's a new immigration law---which many accountants do not yet know about--- which creates a presumption that you've abandoned your green card, if you benefit from filing a 1040NR. If you do not have an accountant well-versed in expatriate tax matters, get one. You may wish to refer to the names and addresses at this Web site. (My bias: I've never wasted money on a good accountant.) There may also be some tax planning opportunities for you.
- Have physical property in the U.S. where you can stay when visiting. Best, is home ownership. Second best, a lease. Even a sublease is better than nothing. You can then meet the "pillow requirement". (INS inspectors will often ask, "Where do you live? Where does your head hit the pillow?" You'll have an answer!)
- Try to come to the U.S. as much as possible for visits. Note that in addition to the above steps needed to preserve your residence, naturalization requires a certain period of actual physical presence in the U.S. There are some exotic exceptions, but generally you need to spend 2 1/2 of the past 5 years in the U.S. (counting from the day you file for naturalization) to qualify. (1 1/2 out of 3 years, if married to a U.S. citizen.)

  One of these exceptions if for people working on U.S. government contracts. Check to see if your prospective employer is working on any such projects. Then see if you can be assigned to them.

Incidently, the law on the subject is this: as long as you intend to keep your green card, INS cannot lift it. The above factors create presumptions as to what your intent is.

Return to the list of questions at the top

13. Can someone hold a dual citizenship, U.S.A. and Canada?

ANSWER: Yes.

There's a Web site (Rich Wales') with tons of information on Canada/U.S. dual citizens.

Return to the list of questions at the top

14. Why should we go through the hassle of hiring a Canadian for the job?

ANSWER: You shouldn't---unless the Canadian is the best person for a key job.

If the Canadian is the best candidate, you should. The short-term hassles far outweigh the benefits of having the right person for the job.

As you know, hiring the right person improves profitability. More employment for U.S. workers results.

Our firm handles immigration work for managers 1) smart enough to recognize value (the best person for the job) and 2) with enough judgement not to be frightened by immigration.

"Hassle" usually means uncertainty. By outsourcing to experts, hassles can be minimized. Immigration counsel can quantify the amount of paperwork, cost, timing and chance of success. With this information, you can intelligently weigh the costs against the benefits.

You can expedite and enhance recruitment in these ways:

- Take advantage of labor surpluses in Canada. People in short supply in the U.S., may be plentiful in Canada. For example, many specialized computer professionals are looking for work in hard-to-fill U.S. positions.
- Use existing Canadian employees if you have Canadian operations:
  - Up and running: Presently employed executives, managers, and technicians have the immediate expertise to effectively tap the U.S. market.
  - Double duty: The employee can split time between the U.S. and Canada. Many clients use one person for the same position in each country. Examples include "North American VP for HR" and "Sales Manager, Western North America".
  - Special work permits: Congress provides a visa just for these employees: the L-1 intracompany transferee visa and it's green card counterpart. Your employees can get the L-1 right at the border.
- Fill the position with the most qualified applicant, faster. It's easy to add Canadian provinces to your recruitment universe. This increases your chance of quick success. The Globe and Mail and Canada Employment Weekly are effective additions to your help wanted media. You can run resumes you receive through the visa selector. You can also ask us for a customized recruitment template: characteristics you should look for in the applicants for quick border work permits.
- Canadian applicants may live closer to you, than other applicants. Relocation may be quite easy. An astounding percentage of the Canadian population lives near U.S. population centers. For example, an LA job applicant would have to travel seven times further for a NY City job interview, than would an applicant from Toronto. If your company is near LA, relocating from Vancouver requires half the travel distance than relocating from New York.
- Relocation of household goods and automobiles is simple, and duty free. The major U.S. moving companies operate in Canada. One such firm provides us with details at this Web site.
- Canadians are already accustomed to business travel to the U.S. Rare is the Ontario professional who doesn't take multiple U.S. trips each year. This is because Canadians do not need visas for business travel. They can enter on border B-1 permits.
- Work permits are easier for Canadians. This entire Web site covers this premise. For example, Candians can get the L-1 and TN work permits right at the border---without long waits for approval of mailed applications.

Once hired, a Canadian can:

- Develop the Canadian market for your product. Canada is one of the best customers for U.S. products. The employee's knowledge of Canadian professions and markets can be valuable to you.
- Rationalize geographic sales areas. Use immigration permits to shrink geographic areas. By ignoring the border, one person can cover a smaller U.S./Canada contiguous area.
- Enjoy a common culture and language. Similar business cultures mean immediate adaptation to your business environment. Relocation is easier on the employee and family. In addition to English there's a bonus: many Canadians are billingual. (English and French.) Even if you do not need French language capability, a person with two languages can learn a third easily. This can be an asset for international activities.

Return to the list of questions at the top

15. How can I convince the employer to sponsor me?

ANSWER: Educate the employer. Here are some pointers:

- Use this Web site. Show the employer the special quick and easy work permits available. This can be especially useful where the employer has already had negative experience with time-consuming immigration paperwork for previous employees. You may wish to deal with the issue head on: attach selected materials to your resume.
  - First, use the visa selector.
  - If the employer doesn't have Internet Web access, print out the page which covers the work permit you seek. We design our Web pages to also be stand-alone printed documents. We will often set up our fax card as our printer, and fax Web pages to interested parties. We also send diskettes to HR managers who do not have Web access. Sooner or later they will have to go on-line---you can perform a valuable service. (You can put all the free diskettes you get in the mail to good use!)
  - Print out this FAQ-Frequently Asked Questions, especially the question "Why should I hire a Canadian?"
  - Keep the Electronic Newsletter on your hotlist to take advantage of the latest benefits.
  - Refer the employment specialist to the "HR Manager's Toolkit" section of the home page.
- Put our office in touch with your employer.
- Suggest that your employer outsource the immigration work. The only employer obligation would be to support you financially and sign at the "x".

Our clients have have used these techniques:

- Find an inside advocate. According to top recruiters, there are two players:
  1. the HR specialist, and
  2. the manager who really needs you.
  Often you will need the hiring manager to be your advocate. The HR specialist will later help you with general corporate-wide relocation issues.
- Find another employer. As a last resort, find a company savvy enough to recognize value (you) and with enough confidence to feel secure facing immigration. That's why there are a few corporate leaders, and many followers. Even the smaller companies need to be international now. (Many smaller companies secure a competitive advantage by looking beyond the border.) Successful HR managers will look beyond the border to fill a job with the most qualified candidate. If an employer would hire you "but for" your citizenship, there is a U.S. shortage of professionals in your field. You are probably in great demand. This may not be apparent to you, since there may be a glut in your profession in Canada.

Return to the list of questions at the top

16.Can I keep both the U.S. Green Card and Canadian Landed Immigrant status?

ANSWER: Yes, you can keep both...but you better have a good story!

Here's the problem: to keep your green card, you have to have the intent to reside permanently only in the United States. Canada requires a similar intent of it's landed immigrants. How can you intend to reside in both countries at once? If INS suspects that you no longer intend to reside permanently in the U.S., they can lift your green card. This usually happens during border crossings. The issue can also come up during naturalization: to become a U.S. citizen you must have intended to reside permanently in the U.S. continuously since the day you got your green card.

As a practical matter, you'll have some explaining to do at the border if INS finds out you hold residency in both countries.

Nevertheless, courts have held that application for and receipt of landed immigrant status in another nation, without more, does not establish intent to abandon permanent residency in the U.S. It is a significant factor showing that one intends to give up U.S. residency, but is not conclusive.

Here are some solutions:

- Get citizenship in one country or another. With U.S. citizenship, you can reside wherever you'd like.
- Apply for a Returning Resident permit. (For information on this permit, and other issues concerning Returning Residents, you may request an E-Mail report.) This permit diminishes---but does not eliminate---the chance that INS would be able to lift your green card.
- Get a temporary work permit for one of the countries and keep the permanent residence in the other.

If you need information about the impact of holding green cards under Canadian law, please contact a Canadian immigration lawyer.

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17. My company feels that a Green Card is a passport to leave and are "sitting on the fence" as far as helping me. What can I do?

ANSWER: We advise our clients---both employers and employees---that if an employee is chained to a company via a temporary work permit, there is something wrong with the relationship. They should get on with the green card, and focus on other aspects of the relationship.

On the other hand, there may be other reasons the employer is delaying. Perhaps they are operating under incorrect assumptions or fears of the process...or just, inertia? Perhaps they think they have plenty of time, and do not realize that processing times for labor certifications are increasing exponentially?

Yes, you are free to leave the company if you have a green card, but:

- The green card is a valuable fringe benefit that employers can confer on employees. Although it may seem expensive, the perceived and actual benefits to you greatly exceed the expense to the employer.
- There is less hassle for the employer. The employer can eliminate the expense of renweing temporary permits by getting permanent status.
- There is a top limit on L-1's. The employer may wait until it is too late, and then be without your services entirely.
- When an employer does not sponsor the employee, that employee then has powerful incentive to find another employer who will sponsor you. This is particularly crucial in positions that aren't easy to fill.
- If your corporate ownership structure changes, your temporary permit could become invalid. By getting you a green card, the employer does not have to worry about any changes in the corporate structure or in your job description.
- Your employer cannot use you on projects requiring certain security clearances without your green card. The U.S. government requires this for many of it's contractors.

Perhaps you can show the above list to your employer?

By the way, here are some advantages to you personally:

- Financial security for you: Your spouse and children can normally obtain permanent residency with work permission, without separate employer sponsorship.
- Security for family: family has U.S. immigration status if you should pass away or lose job.
- Benefits to relatives: You can pass on immigration benefits to certain relatives.
- Pay resident tuition. In many states, green card holders pay less tuition for College and University. In some cases, savings are considerable---thousands of dollars a year.
- Eligibility for life insurance. Our clients report that some insurance agencies require green cards.
- Obtain professional license and credentials. Some states require green cards before granting professional licenses.
- Eligibility for full citizenship: After a waiting period, you can apply for U.S. citizenship. (Note: you do not have to take out citizenship---you can be a permanent resident forever.) Dual citizenship is also possible. You need not give up your present citizenship.
- Ease in travel: No need for U.S. passport visas or form I-94 for international travel. An end to restrictions on travel, when renewals are pending---there are no renewals required for green cards.
- Immunity against future changes in immigration rules, that could hurt your temporary permit
- Legal rights: More rights under U.S. law.
- Tax benefits: Possible income taxation benefit to permanent resident who may be taxed as "non-resident" in home country. (Contact a tax advisor for details.)
- Freedom in choosing place of residence: Green card holders can permanently move to the U.S. On the other hand, it is not necessary to be continuously present in the U.S. (You and other readers can request an E-mail report on Returning Residents.)
- Home purchase: Mortgages may be easier to get. Many banks require permanent residency or other long-term visa, before granting mortgage. Take advantage of U.S. tax benefits of home mortgage payments.

Consider using the resources of our firm to assist you in educating your employer.

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18. Do I need a lawyer?

ANSWER: Sometimes.

The Immigration Service does not require applicants to have a lawyer. There are even some simple cases--such as relative petitions--which most people file on their own. Nevertheless, we suggest that you contact our office before you or your company represent yourself.

Applying for immigration benefits is not the same as applying for a driver's license. Immigration law is extremely complex with hidden pitfalls. In a Federal Court of Appeals case, the court stated:

> With only a small degree of hyperbole, the immigration laws have been termed "second only to the Internal Revenue Code in complexity."

If you do decide to use an immigration attorney, we invite you to evaluate the focus and experience of our office. There are several ways your lawyers can save you time, expense and trouble:

The process will probably go faster with legal counsel.

Legal counsel can make sure the application doesn't take any longer than it has to. An immigration application must contain all forms, the correct fee, and many supporting documents. The supporting documents are not all listed in the INS instructions. (There are no instructions---or even an application form---for the TN NAFTA permit.) Failure to provide these documents in the first instance results in delays. If you are mailing an application INS will return the petition to you for your response. When you return the forms with additional information, it will again be in the administrative backlog. If you are applying at the port of entry, you may be turned away.

Tiny mistakes can delay your application; others can be fatal.

An immigration expert can also apply for expeditious consideration of an application. This means that INS can take the application ahead of others in the backlog.

The bureaucratic procedures can be frustrating. We try to take much of this frustration out of the process for you. We will actually accompany you and walk you through your NAFTA border interview. Our goal is to reassure you when your case is strong and to help you present a stronger case where there are weak areas.

An immigration attorney will know of recent changes in the law, usually before they happen.

Those changes are often dramatic and go into effect before they become common knowledge. We are familiar with the case of an executive who filed for L-1 Intra-company Transfer status on his own. The INS granted L-1 status. Without knowing that the regulations on transferee status changed, he then filed the same application for permanent transferee status. INS denied the case, since the executive did not prepare his applications with the new regulations in mind.

To keep current on changes in immigration, immigration lawyers will use many resources. These include hard to find or expensive sources of current legal information. Informal networks of colleagues throughout the U.S. provide the latest updates. Our office maintains extensive checklists, lists of INS contacts, and large internal files of informally obtained legal materials. We are also linked by computer to immigration experts through the American Immigration Lawyer Association's Infonet---a private on-line service available only to attorney members.

Knowing the "law in the books" is not enough. An immigration attorney will spend time at frequent national and local immigration attorney's meetings to find out how INS actually applies the law.

A lawyer can coordinate applications of both employers and the employee who wishes to immigrate.

This can be important for immigration based on job offers. Our office represents both the employer and the employee in these matters. We must represent the interests of both parties. Therefore, we have the trust and cooperation of both. We can mediate and coordinate communication with the government. This makes a successful outcome likely. Employers should be more willing to deal with the immigration system with experienced counsel representing the employer's interests. This is especially important now, because INS imposes civil and criminal sanctions against employers who employ unauthorized employees.

An immigration attorney may provide you with a quicker or easier approach than the one you were following.

Thousands of Canadians have H-1 status. Most of them should be on the easier TN permit. With advance guidance, you can select the best permit for your needs.

Another example: Our office has represented Canadians who wished to apply for complicated work status. After a consultation, we discovered they were U.S. citizens through claims handed down from their parents.

An immigration expert can construct an application in a way that will keep open other options later.

For example, your attorney will draft temporary petitions very carefully so as not to disqualify you for permanent status later. A person can switch from temporary to permanent status, and even renew temporary status while waiting for permanent status. Nevertheless, such applications are tricky. Statements you unwittingly made in an earlier application can jeopardize these applications.

Even if it is possible to succeed without legal help, even a small risk of mistakes may be too great. Much is at stake in immigration applications. A person's professional future often depends on the ability to live and work in the United States. The future of that person's family also hinges on immigration. Business expansion plans often depend on key executives receiving immigration permission.

A lawyer will obtain immigration benefits carefully and legally.

This is extremely important to you. The INS can and will take away your immigration status if you made a "material misrepresentation" on one of your forms. Future immigration petitions from the employing company could be suspect. This can even happen many years after you have your status. In extreme cases, INS can bar you from entering the U.S. indefinitely, because of such misrepresentations. This bar would hold for even temporary visits as a tourist. In extreme cases, there are criminal penalties.

If you give accurate information, you should expect an application prepared by legal counsel to withstand any such challenges. This is because admission to the bar requires compliance with strict disciplinary standards.

The role of the lawyer is recognized by immigration authorities.

Here is a quote mutually agreed upon by the American Immigration Lawyers Association and the Visa Office of the U.S. Department of State:

> There is an appropriate role for attorneys to play in the visa process; the involvement of an attorney in a visa case does not signify anything amiss. The majority of attorneys are aware of and adhere to the rules of the game. In the sometimes complex world of visas, a good attorney can prepare a case properly, weed out "bad" cases, and alert applicants to the risks of falsifying information presented to the consular officer. The attorney can help the consular office by organizing a case in a logical manner; by clarifying issues of concern; by avoiding duplication of effort (reducing interview time); and by providing the applicant with the necessary understanding of the intricacies of the visa process thereby easing the pressure on consular sections to provide information to the applicant.

Only as a last resort should you use an immigration consultant or a lawyer not admitted to practice U.S. law. Even if you think you cannot afford legal representation, you may be wrong. There are many pro bono and clinic legal programs for those with low income.

You could also work through your Canadian lawyer if that lawyer uses the counsel of an American immigration attorney. In this case, make sure that you are indeed working through a lawyer admitted to practice in your country. (Lawyers in our office regularly work with lawyers in Canada.) A U.S.-trained attorney can represent you personally at NAFTA port of entry interviews. He or she can file legal papers in federal courts if necessary. A lawyer trained in the U.S. can use unique principles of American law to construct petitions. He or she will also be trained to file appeals in U.S. courts and to negotiate with immigration officers. This is especially important when you must file your papers in the U.S., as opposed to filing at U.S. consulates abroad. Your U.S. attorney will be immune to any proposal to limit the practice of foreign attorneys and non-attorney representatives.

We suggest that even if you do intend to file your own applications, at least contact an immigration expert first. You should at least determine the best immigration plan to follow.

Finally, whether you proceed with or without a lawyer---we wish you success!

Return to the list of questions at the top.

19. Do I need a local lawyer?

ANSWER: No.

U.S. immigration law is federal law. It is the same throughout the United States. This is true no matter what area of the United States may become your new home or geographical area of business.

A lawyer with substantial experience in U.S. immigration law has the competence to handle cases anywhere in the U.S. or before any U.S. consulate outside the U.S. This is especially true for businesses and professional immigration matters. This is because most of the business and professional petitions are now filed by mail in regional offices. It is impossible to file these petitions with these regional centers in person.

Our clients have found that our proximity to two "Class A" Ports of Entry---the Niagara Falls Rainbow Bridge and the Buffalo/Ft. Erie Peace Bridge---is quite convenient. This is because of the North American Free Trade Agreement. Under NAFTA, you file applications for certain work visas at any Class A border Port of Entry. This is true whether you will be working in Buffalo, Miami, San Diego or Hawaii. We are able to accompany our clients to their border interviews on short notice.

Rather than finding a local lawyer, you should find an attorney practicing primarily in the business and professional area of immigration law. If you are hiring a Canadian, we suggest that your lawyer have substantial experience in filing L-1, TN and B-1 applications under the unique NAFTA procedures. You may wish to consider our experience in this regard.

To successfully represent our clients nationally (most of our clients are not in the Buffalo area), we have structured our operations in a certain way:

- Internet support, from initial proposal to final approval notification.
- Fax and courier services.
- Knowledge of national immigration developments as they affect our clients through intense contact with colleagues in the U.S. and Canada.

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20. Can I make it go faster?

ANSWER: Yes.

This information is primarily for our clients, but may also be of interest to other readers.

One of the reasons clients retain us, is to quickly obtain work permits. Delays can destroy business and professional plans. They can also be very frustrating.

Surprisingly, most delays are not the government's fault. Many delays are under your control.

Getting Started

Clients often have good reasons for waiting before beginning this important step in their lives. Nevertheless, the process cannot start until we receive a Retainer Agreement.

Assembling Paperwork

There are often delays in sending our office documents we request from clients. Some clients have taken months or years. Again, there are often valid reasons for these delays. Unfortunately, we cannot compile the application until we receive the information. We do our best to comply with the estimated time we give you in our requirements letter. This assumes that you too, comply with your time frame for assembling information and documents. In this way we can plan and reserve time for your application.

We cannot prepare applications until we have all documents we need.

This is because the parts of an immigration application interrelate. We must make multiple photocopies of all items---even those of less significance. We must refer to every item in the exhibit list. We also explain the significance of many documents in a supporting letter we draft.

We must also actually review every document. Sometimes seemingly insignificant comments or dates can make a difference.

It is much more efficient to prepare the petition when all documents are in, rather than piecemeal. Efficiency keeps legal fees down. In this way, the person preparing the petition does not have to "come up to speed" twice---once when the petition is incomplete, and again when the final items are in. Detailed information concerning the applicant or the company is very easy for you to remember, but we must refresh our memories every time we work on your petition.

Waiting for a complete set of documents actually speeds things up. Time spent correcting mistakes is minimized. We only have to schedule your application in our project-planning sequence once.

Time in Our Office

You should also allow time for us to put the application together. We do our best to see that this will not cause delays, but we cannot avoid some delay. Although you do not see us at work, we spend much time compiling applications and exhibits to avoid further INS requests.

Federal agencies will sometimes return an application for more documents. This adds to the delay. This is why we request extensive documents from you to make the initial application as complete as possible. We will sometimes request more documents from you even after you have responded completely to our first request.

A new INS policy will not allow for serious mistakes---if a document is missing INS will deny the application rather than asking you for the missing piece of paper. This means that we would have to file all over again. The result: lost time and increased expense.

Government Processing Time

Once we file even a well-documented application, government agencies then do their part in making you wait. Normal processing times for simple applications range from one to four months. In some INS offices, processing time is one year! (Ask us for the current approximate processing time for your application.)

We have questioned the federal agencies about this. The response is "we are overworked and understaffed."

Special problems increase these processing times. The most frequent example is when a government agency loses track of your file. (This problem diminished when the INS consolidated adjudications into more efficient regional centers.)

How We Make it Go Faster

Using an immigration expert can minimize delays. An immigration practitioner can make sure the waiting doesn't take longer than it has to. The practitioner does this by sending in the most completely documented application possible. The practitioner can also minimize mistakes in the petitions.

Here are examples of how we minimize delays in our office:

- Lawyers do most of the work right on their computers. This avoids "steno pool hell."
- We help you select the quickest and easiest immigration permit before we begin. Canadians can take advantage of instant border adjudictions. For example, many Canadians on H-1 status, could be on TN status. These Canadians could save two-three months by using the TN.
- Our office is equipped to handle the entire matter---from Retainer Agreement to Approval Notice---through the Internet. "One Internet year equals twenty-three real years."
- Our goal is to return e-mail and telephone calls within 24 hours. Try us!

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© 1996 Law Office of Joseph C. Grasmick, Business Immigration

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