Monthly Archives: October 2013

Are Canadians eligible for provincial health benefits after moving to the United States?

opt-2As an immigration attorney with a substantial number of Canadian clients, I am often asked what happens to their healthcare benefits once they leave their respective provinces and move to the United States. The answer depends on several factors, including: which province they were residing in, how long they plan to remain in the United States, and the purpose of their move (temporary visit, studying, working, permanent move, etc.).

For example, a Canadian residing in British Columbia who studies in the U.S. full-time may be eligible for continued health benefits so long as she returns to B.C. when her studies are completed. On the other hand, a B.C. resident moving outside of Canada permanently could lose her health care benefits at the end of the month that she left.

Before moving to the United States, be sure to research whether you are entitled to continuing coverage under your provincial health care plan.  If you are visiting temporarily, you may want to consider purchasing short-term travel insurance such those offered through Blue Cross.  If not, you should be prepared to secure health insurance in the United States – whether it be through your employer’s plan, spouse’s plan, or purchasing your own plan.  Click on your home province or territory to learn more about health care coverage when moving to the United States:

British Columbia
Alberta
Saskatchewan
Manitoba
Ontario
Quebec
Newfoundland and Labrador
Prince Edward Island
Nova Scotia
New Brunswick
Yukon Territories
Northwest Territories
Nunavut

TN Visas for Management Consultants

 

The North American Free Trade Agreement (NAFTA) between Canada, U.S. and Mexico created a work visa category known as the TN visa. Under this category, Canadian and Mexican citizens can enter the United States to work temporarily in a professional occupation listed in Appendix 1603.D.1 of the North American Free Trade Agreement.

Education v. Work Experience

While most of the occupations under NAFTA require the applicant to possess at least a four-year bachelor’s degree, management consultants may qualify if they possess at least five years of work experience in the intended occupational field. Specifically, an applicant for a management consultant TN visa must possess a “Baccalaureate or Licenciatura Degree; 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 related to the consulting agreement.” In other words, to qualify as a Management Consultant under a TN visa, the applicant must have either a bachelor’s degree (or higher) or five years of work experience, in the field he/she is being retained to perform consulting services in the United States.

Example: A Canadian citizen with a two-year college diploma and eight years of full-time IT work experience has been retained by a U.S. technology company to provide consulting services. She would be eligible for a TN visa as a management consultant based on her work experience despite the fact that she does not have a bachelor’s degree. If she has a bachelor’s degree in Psychology and three years of full-time IT work experience, she would not qualify because her degree is unrelated to the field in which she is being retained to perform services, and she does not have five years of relevant IT work experience.

As evidenced in the example, a primary benefit to the TN management consultant visa is that the intended field of employment does not have to fall within one of the occupations listed in Appendix 1603.D.1.

Employee v. Contractor

Instead of full or part-time employment, management consulting services are based on a temporary, periodic or fixed consulting nature. The key is that the management consultant is retained by the U.S. company as an outside, independent contractor. This means that the U.S. company should not directly employ the consultant as a salaried employee. Rather, there should be a written agreement between the company and the consultant that clearly outlines the scope of services to be performed, the method of compensation, and the anticipated duration of services. In the alternative, the U.S. company may contract with a Canadian company to provide consultation services. In these situations, the Canadian employees may enter the U.S. on TN management consultant visas to perform services for the U.S. company so long as they are compensated by their Canadian employers and not by the U.S. company.

Duration

TN visas may be issued for up to three years and are renewable indefinitely. However, since consulting services are usually of a fixed duration, TN visas for management consultants are often issued only for the duration outlined in the services agreement. Canadians and Mexicans are permitted to have multiple TN visas, so consultants may perform services for more than one U.S. company at a time so long as he/she obtains an appropriate TN visa for each project or agreement.

Learn more about the TN visa for Canadians and Mexicans.

Marriage-based green card FAQs

 

There are several ways that a foreign national can obtain permanent residency (green card). One of the most common methods is by marrying a U.S. citizen. In these cases, a green card is immediately available to the foreign spouse.

How soon can I get a green card if I marry a US citizen?

You may apply for a green card immediately after you marry a US citizen. Assuming that there are no requests for evidence or deficiencies in the application, a green card can be issued anywhere between 3-8 months.

Can I start the green card process before I get married?

No. You must be married to a US citizen before you can begin the application process.

Can I get a green card if I marry a US permanent resident?

The foreign spouse of a US permanent resident may be eligible for a green card. However, the green card would not be immediately available and the foreign spouse would fall under the second family-based preference category.

What is the exact process for applying for a marriage-based green card?

It depends on whether the foreign spouse is lawfully in the United States at the time of application. If the foreign spouse is in the United States, the US citizen can file a petition to sponsor the spouse while the foreign spouse files a concurrent application to adjust his/her status. Once filed, the foreign spouse will undergo biometrics and, in most cases, be required to attend a USCIS interview with his/her spouse.

What if the foreign spouse is outside of the United States?

If the foreign spouse is not in the United States in lawful status, or is outside the United States at the time the application is submitted, then he/she would undergo consular processing. The US citizen would submit a petition to sponsor the foreign spouse. Once approved, the application will be sent to the US consulate closest to where the foreign spouse is residing where he/she would undergo biometrics and a consular interview.

If the foreign spouse is outside the United States when the application is filed, will he/she be able to enter the U.S. before the green card is issued?

A foreign spouse with a pending green card application may be denied entry to the United States as a visitor. This means that consular processing often results in an extended period of separation whereby the foreign spouse must remain abroad until a green card is issued.

Is there anything that can be done to reduce the separation time?

The ideal situation to reduce separation time is to have the foreign spouse adjust his/her status in the United States. However, this requires the foreign spouse to be in the US lawfully when the application was filed. For example, a Canadian citizen in the US while on a work visa may adjust her status to a permanent resident after marrying her US citizen boyfriend. In this case, the husband and wife can remain together throughout the entire green card application process.

If the foreign spouse cannot adjust his/her status and must undergo consular processing, he/she can apply for a K-3 visa. This visa allows a foreign spouse with a pending green card application to enter the U.S. to be with the spouse during the pendency of the application.

Does the petitioner have to meet a certain level of income to sponsor a foreign spouse for a green card?

Yes, the US citizen sponsor generally must have income that exceeds 125% of the HHS poverty guidelines. So for a household of two, the petitioner’s income must exceed $18,912.00.

What if the petitioner does not meet the income requirements?

If the petitioner does not meet the income requirements, there are a couple of options. The petitioner can use his/her other assets, such as real property, stocks or savings. The foreign spouse/beneficiary may also use his/her income. The couple may also use a joint sponsor. The joint sponsor must be a US citizen domiciled in the United States. He/she does not have to be related to either of the spouses, though his/her income alone must meet or exceed the poverty guidelines.

Can I adjust my status while in the United States on a visitor visa?

Generally, a foreign national entering the US on a visitor visa (B-1/B-2) cannot adjust his/her status to permanent residency. This is based on the presumption that, at the time he/she entered the US, the intent was to return to his/her home country. Thus, a foreign national who enters on a visitor visa, marries a US citizen and applies for adjustment of status may be presumed to have ‘preconceived intent.’ Preconceived intent may be rebutted in some cases by showing proof of ties to the home country. There are also ways to avoid preconceived intent by timing the filing of the adjustment of status application.

What does the USCIS look for when evaluating a marriage-based green card petition?

The USCIS looks to see whether the marriage is bona fide, genuine and entering into in good faith. There are a variety of factors and evidence that can be used to evaluate this – including statements from family/friends, photos, joint ownership of assets, and in-person interviews.

What happens once I get my green card?

If the application is approved, the foreign spouse is issued ‘conditional residency.’ This means that he/she is a resident of the United States conditioned on remaining married for two years. Three months prior to the two year anniversary of being a resident, both spouses must jointly apply to remove the condition – at which time the foreign spouse becomes a permanent resident.
What happens if I get divorced or separated before the two year anniversary?

If the couple separates or divorces prior to two years, the foreign spouse may still apply to remove the condition on the green card by providing documentation or other evidence that the marriage was entered into in good faith.

What are the filing fees associated with a marriage-based green card?

The petitioning US citizen must pay a filing fee of $420.00. If adjusting status, the beneficiary’s filing fee is $1,070.00 (includes biometrics). If the beneficiary undergoes consular processing, the fee is $230.00 (unless waived under reciprocity agreements).

Learn more about getting a green card by marrying a U.S. citizen.

Immigration Options for Intra-Company Worker Transfers Between U.S. & Canadian Offices

 

Because of its close physical proximity to each other, companies in Canada and the United States often have to transfer their executives and employees back and forth within their respective subsidiary, satellite, parent or affiliate offices in the neighboring company. Given the differing immigration laws in each country, it may seem that such transfers would be a logistical nightmare. However, Canada and the United States have several residency and visas categories that gives these companies a variety of options when considering how to move personnel between the two countries.

CANADIANS EMPLOYED BY A U.S. COMPANY

TN Visa

Under Chapter 16 of the North American Free Trade Agreement, Canadian, Mexican and U.S. citizens can enter the three respective countries to conduct business or investment activities. Canadian citizens may work in the United States in a professional occupation if:

They qualify under the “Professionals Under the North American Free Trade Agreement” list;
They possess certain specific criteria for that profession (i.e., relevant degree);
The position in the U.S. requires a candidate in that professional capacity and;
They will be entering to work for a U.S. employer
TN visa advantages

TN visas are valid for up to three years at a time, and may be renewed indefinitely so long as the applicant can demonstrate an intent to return home to Canada at the expiration of the visa. TN visas are also easier relatively easy to apply for, and to have approved. There are three ways to apply for a TN visa:

In person at a port of entry (POE) to the United States
By submitting an application to the USCIS while in the United States
By submitting an application to the USCIS from abroad

H-1B Visa

The H-1B work visa may be issued to Canadian citizens seeking temporary work in a “specialty occupation,” which requires the skills of a professional. Congress issues 65,000 H-1B visas every year, with an additional 20,000 for those with master’s degrees or higher.

Criteria

The job must meet one of the following criteria to qualify as a specialty occupation under an H-1B visa:

  • Bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the position being offered
  • The degree requirement for the position being offered is common to the industry, or the job is so complex or unique that it can be performed only by an individual with a degree
  • The employer normally requires a degree or its equivalent for the position being offered
  • The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s degree or higher (i.e. Master’s, MBA, J.D., PhD., etc.)

To qualify to accept a job offer in a specialty occupation, the Canadian citizen must meet one of the following criteria:

  • Have completed a U.S. bachelor’s degree or higher required by the specific specialty occupation from an accredited college or university
  • Hold a foreign degree that is the equivalent to a U.S. bachelor’s or higher degree in the specialty occupation
  • Hold an unrestricted state license, registration, or certification which authorizes the beneficiary to fully practice the specialty occupation and be engaged in that specialty in the state of intended employment
  • Have education, training, or progressively responsible experience in the specialty that is equivalent to the completion of such a degree, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty

In addition to the annual 65,000 H-1B visas, Congress has allotted an additional 20,000 H-1B visas for individuals with advanced degrees (M.D., J.D., MBA, Ph.D. etc.). So Canadians with the equivalent of a U.S. medical degree, law degree, or any other graduate degree are eligible to be considered for one of the 20,000 Master’s Cap visas beyond the 65,000 regular cap.

E-2 Visa

The E-2 visa allows foreign nationals of a country that has a treaty with the United States, to make an investment in a business enterprise. Generally, the investment must be substantial, at risk, and the investor must oversee and direct the day-to-day operations. The visa is valid for three years, and is renewal indefinitely so long as the business continues to operate.

Substantial Investment

Unlike permanent residency under EB-5, which requires a $500,000.00 or $1 million investment, the term “substantial” for an E-2 visa is not so clear-cut. The unwritten rule of thumb is that the investment should be approximately $250,000.00 USD if the business/enterprise is new. There may be some cases where the investment is as low as $50,000.00. However, these cases usually involve businesses that act as a subsidiary to a parent company in the foreign national’s home country. In these types of situations, the investor may also want to consider an L visa [link to L visa].

Meaning of ‘At Risk’

This means that the investment must be at risk of being lost of the business is unsuccessful. This may be done be entering into contracts or agreements for services or rent, purchasing merchandise or equipment, or hiring staff.

L-1 Visa

The L-1 visa allows a U.S. employer to transfer a manager or an executive from an affiliated office in Canada to one of its U.S. offices. The employer must be doing business in the U.S. and it must have an existing relationship with the company in the applicant’s home country (such as being a parent company, affiliate, subsidiary etc.). Furthermore, the employee must have been working for the affiliated employer in the home country for at least one continuous year within the three years prior to being issued an L visa, and he/she must be going to the U.S. to render services as a manager/executive. Employees will be granted an initial three-year L visa.

Example: KPMG is an accounting company with offices in Canada and in the United States. Sally is a Canadian citizen who has been working as a financial accounting director for KPMG in its Vancouver offices for the past four years. She has accepted a position to work as a financial accounting director at KPMG in its New York office. She is eligible to work in New York under an L visa.

New Office: Setting up a U.S. affiliate company

The L visa also allows a foreign company that does not yet have an affiliated U.S. office to send a manager/executive to the United States for the purpose of setting one up. To do so, the foreign employer must demonstrate that: 1) sufficient physical premises to house the new office have been secured; 2) the employee has been employed as a manager/executive for one of the three previous years; and 3) the new U.S. offices will support an executive/managerial position within a year of the L visa being issued. These employees will be granted an initial one-year L visa. This is an ideal visa for foreign nationals looking to expand to the United States and should be considered as an alternative to the E-2 visa.

O-1 Visa

The O-1 visa may be suitable for Canadian citizens who have demonstrated extraordinary ability in the sciences, arts, education, business, or athletics, or who has a demonstrated record of extraordinary achievement in the motion picture or television industry and has been recognized nationally or internationally for those achievements. The O-1 visa can be divided as follows:

O-1A: individuals with an extraordinary ability in the sciences, education, business, or athletics (not including the arts, motion pictures or television industry)

O-1B: individuals with an extraordinary ability in the arts or extraordinary achievement in motion picture or television industry

Eligibility

To qualify for an O-1 visa, the Canadian citizen must demonstrate extraordinary ability by sustained national or international acclaim and must be coming temporarily to the United States to continue work in the area of extraordinary ability. Extraordinary ability in the fields of science, education, business or athletics means a level of expertise indicating that the person is one of the small percentage who has risen to the very top of the field of endeavor. Extraordinary ability in the field of arts means distinction. Distinction means a high level of achievement in the field of the arts evidenced by a degree of skill and recognition substantially above that ordinarily encountered to the extent that a person described as prominent is renowned, leading, or well-known in the field of arts.

To qualify for an O-1 visa in the motion picture or television industry, the beneficiary must demonstrate extraordinary achievement evidenced by a degree of skill and recognition significantly above that ordinarily encountered to the extent the person is recognized as outstanding, notable or leading in the motion picture and/or television field.

Evidentiary Criteria for O-1A

Evidence that the Canadian citizen has received a major, internationally recognized award, such as a Nobel Prize, or evidence of at least (3) three of the following:

  • Receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor
  • Membership in associations in the field for which classification is sought which require outstanding achievements, as judged by recognized national or international experts in the field
  • Published material in professional or major trade publications, newspapers or other major media about the beneficiary and the beneficiary’s work in the field for which classification is sought
  • Original scientific, scholarly, or business-related contributions of major significance in the field
  • Authorship of scholarly articles in professional journals or other major media in the field for which classification is sought
  • A high salary or other remuneration for services as evidenced by contracts or other reliable evidence
  • Participation on a panel, or individually, as a judge of the work of others in the same or in a field of specialization allied to that field for which classification is sought
  • Employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation

If the above standards do not readily apply to the Canadian citizen’s occupation, the petitioner may submit comparable evidence in order to establish eligibility.

Evidentiary Criteria for O-1B

Evidence that the Canadian has received, or been nominated for, significant national or international awards or prizes in the particular field, such as an Academy Award, or evidence of at least (3) three of the following:

  • Performed and will perform services as a lead or starring participant in productions or events which have a distinguished reputation as evidenced by critical reviews, advertisements, publicity releases, publications, contracts or endorsements
  • Achieved national or international recognition for achievements, as shown by critical reviews or other published materials by or about the beneficiary in major newspapers, trade journals, magazines, or other publications
  • Performed and will perform in a lead, starring, or critical role for organizations and establishments that have a distinguished reputation as evidenced by articles in newspapers, trade journals, publications, or testimonials.
  • A record of major commercial or critically acclaimed successes, as shown by such indicators as title, rating or standing in the field, box office receipts, motion picture or television ratings and other occupational achievements reported in trade journals, major newspapers or other publications
  • Received significant recognition for achievements from organizations, critics, government agencies or other recognized experts in the field in which the beneficiary is engaged, with the testimonials clearly indicating the author’s authority, expertise and knowledge of the beneficiary’s achievements
  • A high salary or other substantial remuneration for services in relation to others in the field, as shown by contracts or other reliable evidence

If these standards do not apply to the Canadian’s occupation in the arts, the petitioner may submit comparable evidence in order to establish eligibility (this exception does not apply to the motion picture or television industry).

EB-1 Green Card

Certain Canadian citizens may be eligible for EB-1 permanent residency if they have an ability that is “extraordinary,” are an outstanding professor or researcher, or are a multinational executive or manager. Each category has certain requirements that must be met. The EB-1 green card is reserved for an exclusive group of people, though there is no restriction with respect to education or profession. It can be anybody who is one of the very best at what they do: a Michelin-award winning chef, an Olympic medal-winning athlete, a Nobel Prize-winning scientist, a Juno-award winning singer/songwriter, a published author, a renowned professor, or an Academy Award-winning actress.

Persons of extraordinary ability

The Canadian citizen must be able to demonstrate extraordinary ability in the sciences, arts, education, business, or athletics through sustained national or international acclaim. The achievements must be recognized in his/her field through extensive documentation. No offer of employment is required.

The applicant must meet 3 out of the 10 listed criteria below to prove extraordinary ability in the field:

  • Evidence of receipt of lesser nationally or internationally recognized prizes or awards for excellence
  • Evidence of membership in associations in the field which demand outstanding achievement of their members
  • Evidence of published material in professional or major trade publications or other major media
  • Evidence that the applicant have been asked to judge the work of others, either individually or on a panel
  • Evidence of original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field
  • Evidence of authorship of scholarly articles in professional or major trade publications or other major media
  • Evidence that the applicant’s work has been displayed at artistic exhibitions or showcases
  • Evidence of performance of a leading or critical role in distinguished organizations
  • Evidence that the applicant commands a high salary or other significantly high remuneration in relation to others in the field
  • Evidence of commercial successes in the performing arts

Outstanding professors and researchers

The Canadian citizen must demonstrate international recognition for his/her outstanding achievements in a particular academic field. He/she must have at least 3 years experience in teaching or research in that academic area, and he/she must be entering the United States in order to pursue tenure or tenure track teaching or comparable research position at a university or other institution of higher education.

The petition must include documentation of at least two of the following, and an offer of employment from the prospective U.S. employer:

  • Evidence of receipt of major prizes or awards for outstanding achievement
  • Evidence of membership in associations that require their members to demonstrate outstanding achievement
  • Evidence of published material in professional publications written by others about the alien’s work in the academic field
  • Evidence of participation, either on a panel or individually, as a judge of the work of others in the same or allied academic field
  • Evidence of original scientific or scholarly research contributions in the field
  • Evidence of authorship of scholarly books or articles (in scholarly journals with international circulation) in the field

Multinational manager or executive

The Canadian citizen must have been employed outside the United States in the 3 years preceding the petition for at least 1 year by a firm or corporation and he/she must be seeking to enter the United States to continue service to that firm or organization. The employment must have been outside the United States in a managerial or executive capacity and with the same employer, an affiliate, or a subsidiary of the employer. The petitioner must be a U.S. employer, and it must have been doing business for at least 1 year, as an affiliate, a subsidiary, or as the same corporation or other legal entity that employed the foreign national abroad.

This category is very similar to the L-1 intra-company transferee visa – with the difference being that the EB-1 allows the manager to obtain permanent residency, while the L-1 is a temporary visa.

EB-2 & EB-3 Green Card

The EB-2 category is reserved for individuals of exceptional ability in the arts, sciences or business; individuals with advanced degrees (M.D., J.D., LLM, Ph.D. etc.); and foreign doctors who will practice in an underserved area in the U.S. Foreign nationals who qualify for an EB-2 green card must have an employer who is willing to file a petition on his/her behalf.

The EB-3 category is reserved for skilled workers with two years training and experience; professionals with bachelor’s degrees; and other “unskilled” workers. As with the EB-2 green card, foreign nationals who qualify for an EB-3 green card must have an employer who is willing to file a petition on his/her behalf.

AMERICANS EMPLOYED BY A CANADIAN COMPANY

Intra-Company Transferee Visa

Under NAFTA, American citizens can gain quicker, easier temporary entry into Canada and Mexico in order to conduct business or investment activities.

The intra-company transferee visa allows U.S. citizens currently working for a U.S. employer to transfer to the same or affiliated employer in Canada in order to work temporarily. To qualify, intra-company transferees must:

  • Have worked continuously for at least one year in the preceding three years for the same or affiliated employer in the United States
  • Be transferred to Canada to work temporarily for the same or an affiliated employer, and
  • Work in a capacity that is managerial, executive or that involves specialized knowledge
  • NAFTA Professional Visa

NAFTA professionals must be qualified to work in one of the professions listed in Appendix 1603.D.1 of Chapter 16 of NAFTA. These professions include, but are not limited to: accountant, computer systems analyst, doctor, lawyer, librarian, engineer, management consultant, dentist, occupational therapist, physical therapist, pharmacist, registered nurse, physicist, college/university teacher and technical publications writer). They must also have pre-arranged employment with a Canadian employer in an occupation that matches his/her qualifications.

Note that this is the equivalent the TN visa in the United States.

Traders and Investors Visas

Traders and Investors must:

  • Be seeking to carry out substantial trade in goods or services, mainly between U.S and Canada, or conduct substantial investment activities in Canada, in a supervisory or an executive capacity, or in a capacity that involves essential skills; and
  • Meet additional requirements under NAFTA and have a work permit

Federal Skilled Worker Program

Skilled workers from the U.S. may be selected as Canadian permanent residents based on their education, work experience, knowledge of English and/or French, and other criteria that have been shown to help them become economically established in Canada.

For an application to be eligible for processing, the U.S. citizen must:

  • Have a valid offer of arranged employment with a Canadian employer; or
  • Have one year of continuous full-time paid work experience in a certain occupation where there is a proven need in Canada for more workers; or
  • Be an international student enrolled in a Ph.D program in Canada (or graduated from a Canadian Ph.D program within the past 12 months) and meet certain other criteria

Canadian Experience Class

Certain U.S. citizens who are temporarily working in Canada or who graduated in Canada may qualify for permanent residence under the Canadian Experience Class. To do so, you must:

  • Plan to live outside Quebec;
  • Be either:
  • A temporary foreign worker with at least two years of full-time (or equivalent) skilled work experience in Canada, or
  • A foreign graduate from a Canadian post-secondary institution with at least one year of full-time (or equivalent) skilled work experience in Canada
  • Have gained your experience in Canada with the proper work or study authorization
  • Apply while working in Canada or within one year of leaving your job in Canada
  • Include the results of an independent language test

Skilled Trades Worker

Under the Skilled Trade Worker category, Canada will accept up to 3,000 foreign nationals to in an effort to address serious labor shortages in certain areas of the country.

To qualify, applicants must meet four requirements:

  • They must have an offer of employment in Canada or a certificate of qualification from a province or territory to ensure that applicants are “job ready” upon arrival;
  • They must meet a basic language requirement;
  • They must have a minimum of two years of work experience as a skilled tradesperson, to ensure that the applicant has recent and relevant practice as a qualified journeyman; and
  • They must have the skills and experience that match those set out in the National Occupational Classification (NOC B) system, showing that they have performed the essential duties of the occupation

 

Criminally inadmissible U.S. citizens with DUI convictions who want to enter Canada

opt-2U.S. citizens who have been convicted of a DUI in the United States may be surprised to learn that they may be inadmissible to enter Canada – even for a short vacation. While DUI’s are classified as misdemeanors in some states, Canada generally does not admit U.S. citizens who have a DUI conviction. So what can an American do if he/she wants to enter Canada? Fortunately, there are a few options.

Deemed Rehabilitation

If it has been more than ten years since the completion, you may be deemed rehabilitated depending on:

  • The type of crime that was committed;
  • The seriousness of the crime was and how much time has elapsed since the sentence was imposed, as follows:
  • Ten (10) years for one indictable offence;
  • Five (5) years for two or more summary convictions;
  • Whether more than one crime was committed; and
  • Whether the crime would be punishable in Canada by a maximum prison term of less than 10 years.

This means that if you have only had one U.S. criminal conviction and it was a DUI, you will be deemed rehabilitated if it has been more than ten years since the completion of the sentence as stated in the final disposition. This could mean jail time, community service, probation or other court-mandated program.

Example: John was convicted of a DUI in California on January 1, 2000 and was sentence to 30 days in jail and 2 years probation. He completed his jail sentence on February 1, 2000 and his probation on February 1, 2002. Since it has been more than ten years since the completion of his sentence (which ended on February 1, 2002), John is deemed eligible and he is admissible to Canada.

Applying for Rehabilitation

If it has been more than five (5) years since the completion of a DUI conviction sentence, but less than ten (10) years, a U.S. citizen may submit an application for rehabilitation in order to be admissible to Canada. Rehabilitation means that you lead a stable lifestyle and that you are unlikely to be involved in any further criminal activity.

Temporary Resident Permit

U.S. citizens with DUI convictions who have not completed sentence, or if it has been less than five years since the completion of the sentence, are ineligible for deemed or application for rehabilitation. In these cases, they may apply for a Temporary Resident Permit (TRP), which is a formal request to be admitted to Canada despite the existence of criminal inadmissibility. TRP’s can be issued for a variety of circumstances (i.e., brief vacation, temporary employment) and length of duration (can be one day or one year), based on the discretion of the reviewing officer.

Please click here for more information on Temporary Resident Permits and Rehabilitation.

Logistical Considerations for F-1 Students and Optional Practical Training (OPT)

 

There are several deadlines to consider in handling an OPT application: Pursuant to 8 C.F.R. § 214.2(f)(11)(i)(B)(2) “[f]or post-completion OPT, the student must properly file his or her Form I-765 up to 90 days prior to his or her program end-date and no later than 60 days after his or her program end-date. The student must also file the Form I-765 with USCIS within 30 days of the date the DSO enters the recommendation of OPT into his or her SEVIS record” (emphasis added). In addition to the deadlines provided in the regulation, the Form I-765 instructions (item 3.A. on page 2) require that an I-20 submitted with Form I-765 requesting OPT must be “endorsed by a Designated School Official within the past 30 days.”

Until recently, when USCIS received an OPT application more than 30 days after the DSO entered the OPT recommendation in SEVIS, it would often send the applicant a Request for Evidence requiring a new Form I-20 signed by the DSO. The DSO could simply reprint the Form I-20 from SEVIS (without entering a new OPT recommendation in SEVIS) and sign it, and the student could submit it to USCIS. However, USCIS has recently taken the position that the phrase “within 30 days of the date the DSO enters the recommendation of OPT into his or her SEVIS record,” does not allow this approach, and applications submitted more than 30 days after the DSO’s recommendation of OPT in SEVIS are now being denied. This was also recently confirmed at the I-539 Stakeholder Engagement Meeting of 6/9/12, where USCIS officials stated that failure to timely file within 30 days of the date the DSO enters the recommendation for OPT will result in a denial of the application. A copy of the PowerPoint presentation is available on Infonet. (InfoNet Doc. No. 12050960).

To avoid a denial of an OPT application, the student must file it with USCIS within 30 days of the OPT recommendation in SEVIS. If a student is unable to submit the Form I-765 and supporting I-20 to USCIS within 30 days of the OPT recommendation in SEVIS, the DSO should cancel the original OPT recommendation in SEVIS and enter a new recommendation. Simply issuing a new Form I-20, which was acceptable until recently, will no longer suffice.

Source: AILA InfoNet Doc. No. 12072441 (posted Oct. 19, 2012)

E-2 Treaty Investor Visa

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The E-2 visa allows foreign nationals of a country that has a treaty with the United States, to make an investment in a business enterprise. Generally, the investment must be ‘substantial,’ ‘at risk,’ and the investor must oversee and direct the day-to-day operations. The visa is valid for three years, and is renewal indefinitely so long as the business continues to operate.

What is a ‘substantial investment’?

Unlike the EB-5 green card, which expressly states a $500,000.00 or $1 million investment, the term “substantial” for an E-2 visa is not so clear cut. Generally, the investment should be approximately $250,000 USD if the business/enterprise is new. There may be some cases where the investment is as low as $50,000.00. However, these cases usually involve businesses which act as a subsidiary to a parent company in the foreign national’s home country.

What does ‘at risk’ mean?

This means that the investment must be at risk of being lost of the business is unsuccessful. Otherwise, there would be a glutton of people applying for E-2 visas – knowing that there is no risk in losing their investment.

Pros and Cons

The E-2 visa is a great vehicle for foreign nationals and their families to live in the United States while operating a business. One advantage is that the application can be processed within three weeks under Premium Processing. Another advantage is that the visa is valid for three years, and renewable indefinitely so long as the business continues to operate. The downside is that the investment can be significant, and you risk losing all the money and being forced to return to your home country if the business is unsuccessful. There is also no direct path to permanent residency on an E-2 visa. While an E-2 visa holder may obtain a green card through employment or marriage, the E-2 visa itself does not make one eligible for permanent residency.

Please click here for more information on the E-2 visa.