Subject: Immigration
Expert: taxman at centa.com
Date: Monday September 13, 2004
Time: 05:12 PM -0700
QUESTION:
Sir,
I have an employment authorization (work permit)visa good for 5 years here in USA. This is my 3rd year. I am a Canadian citizen, I wonder if you could kindly give me an advise.
I want to get a permanent residency here in USA together with my family, why can't the company sponsor me? I was told that this is a Department of Labor issue and not an Immigration. I was told by our company lawyer that my job title (job description, duties, etc) can be done by American and cannot be given to me. On the first place WHY did they sponsor me as a tranferee from Canada to USA? Now they are turning back and saying "NO, we can't help you" kind of.
I researched at the USCIS website and the criterias asked, I already met.
Kindly advise.
JXXXXX
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david ingram replies:
My thinking is that they have decided that they do not want to keep you on as an employee. If they do not sponsor you for your resident alien (green) card, you are out of there" in another two years without a golden handshake, etc.,
Otherwise, I know of no reason why they can not try and keep you by getting your resident alien card for you and your family. Unfortunately, unlike Canada where having worked in the country for a year goes a LOOONG way towards getting you a permanent resident (PR) status, the US requires you to have a sponsor which is usually your employer in these cases. You could just "get in line" for immigration but I think it is about a 14 year waiting list and in the meantime, you would have to come back to Canada.
If you are on an H1-B, you might consider looking for another job in the USA The new rules make it an 80 to 90% likelihood that you can move your H1-B and maybe you can make a deal for the new company to sponsor you.
You should likely consult a local US immigration attorney. Remember, the company lawyer is working for the company, NOT you. This leads me to the fact that:
I "used" to have a number of large corporations as clients in these matters. I have none left because I always thought my duty was to explain the facts of life to the person wanting to go and work in the US. The recruiters were always promising the moon with the wife and kids getting the right to work in a couple of years . I would explain that it would likely take five or six years or never and that the wife could not volunteer, the 17 year old son or daughter could not get a job at the Dairy Queen or MacDonald's and that this situation tended to develop a poisonous family atmosphere. By the time I was finished, half of the recruited had changed their minds. On the other hand, I still think it is better to send someone south whose family is "truly" prepared for the limitations which they will live under.
Husbands tend to start resenting their kids and wife who are totally dependent on hubby for every single stinking red cent and of course, the spouse and children start feeling like the second class non-citizens that they have become.
Linda Deck's "Susan's Story" follows embedded in my November 1998 newsletter. www.centa.com
Please note that the amounts, exchange rates, etc are those found in November, 1998
November 1998. Also note that I was explicitly talking about TN visas here. the same rules are pretty applicable to those with H1 visas and used to apply to all L1 visas. The spouse (but not the children) of most L1 transferees can now work as of January 2003 (or was it Jan 2002 - oh well, you get the idea.
david ingram's CEN-TAPEDE
US / Canadian Income Tax, Immigration and General
Information Newsletter - Nov 12, 1998
GETTING A JOB IN THE U.S.A. - TREATY NAFTA
The Oct 98 CEN-TAPEDE newsletter dealt with individuals working in the U.S.A. with a TN (Treaty Nafta) visa. I put out a warning suggesting that individuals with this visa should be careful about leaving the U.S. for a while because there seems to be a renewed vigour by U.S. INS agents to re- invent the wheel.
We (and others) were being told that individuals were having
their TN visas taken away from them because the INS
officials were "re-qualifying" people at the border.
I will try and explain. To get a TN visa, one must be:
1. a member of 63 different professional occupations
accepting a job as an employee
2. willing to accept a "temporary" job with a contract for
less than one year.
However, even though the job is temporary, you can usually /
likely renew it for eight years or maybe even more.
Remember, the entry to the U.S. is supposed to be
"temporary" in nature and the applicant is specifically
"honour bound" to be entering the U.S. without the
intention of staying in the United States permanently.
I ask you, just "how" does a "temporary" worker explain why
he or she has sold their $300,000 house and car in Canada,
given up all Canadian clubs, unions, bank accounts, health
cards, and magazine subscriptions, sold their summer or ski
cabin, and bought a $300,000 house in the United States if
the job is "temporary".
What happened was this: The United States employer hired the
Canadian for a long term. You will agree with me that
"George" is not going to do everything I just mentioned for
a one year job. However, the American employer told the
Canadian that to get across the border, the company can
only give them a one year (less a day) contract for border
crossing purposes.
The Canadian demanded (and got) an actual contract for 5
years with provisions for moving expenses, car, travel
allowance, etc. After all, who is going to sell their
house, move to another country (or province) and buy
another house without some job security.
The Canadian has his or her "real" contract in their attaché
case when they cross the border or they just innocently
tell the INS officer (when asked) that they are intending to
stay for five years, or that they have applied for
permanent status, or, or, or.
Sometimes, if things seem to be going awry, the Canadian
panics and starts demanding his rights (of which there are
none or at least very few) because his wife and family are
in Las Vegas and he has to get home or as happens most
often in my experience, the dependent spouse and children
with the TD (treaty dependent) visas puts their foot in it
because they are trying to get home after a visit to
Canada. Let me be very clear here. One wrong word or
sentence at the U.S. border can have your TN visa revoked
and your having to hire someone else to go south and clean
out your house because that INS officer at the border has
banned you for five or ten years for lying to them. Yes,
that INS officer does have the power to ban you with no
official avenue of appeal.
I will give you another example that I have seen 20 or 25
times:
A Computer Systems Analyst qualifies to go to the United
States under NAFTA. A computer Programmer does NOT
qualify. After 25 years in the computer business, I still
find the difference hard to figure out. As a consequence,
there are a lot of Programmers going across the border with
letters offering them jobs as Systems Analysts. However,
when spouse and children are flying home to Las Vegas after
a Xmas holiday in Vancouver (with their TN visas) and the
INS officer asks the 15 year old daughter what her father
does and she says dad is a computer PROGRAMMER, the axe
falls.
In this case, if dad "is" a programmer and was "hired as a
programmer", both dad and the company who issued the
systems analyst letter are guilty of immigration fraud. Dad
is likely banned from the U.S. for 5 years, and, of course
the whole family gets to stay in Canada.
SPOUSE AND KIDS CANNOT WORK
The Spouse and children of TN, L1, H1B, H2A, H2B, J1, M1,
O1, P1, or even B1 (as I wrote this on Nov 13, 98, a
Swedish B1 visa holder who had been in the U.S. for 5 months wanted to know if his wife could work) visa holders may not work at any salaried occupation in the United States.
If they volunteer, they can not volunteer for something that
other individuals are being paid for in the same
organization.
The spouse of an H1A visa holder (usually a nurse or a
physiotherapist) can work though. It is interesting that
H1A"s are usually held by women and their male husbands
"do" get to work but all the other visas are usually held by
men and their female wives do not get to work.
Of course, a "male" nurse"s wife could work in this
situation.
This is devastating to the family in many circumstances and
for 35 years I have seen marriages break up and despondent
kids where dad is working in the states and no one else can
work.
My favourite (in a sad sort of way) situation involved the
wife of a Canadian Pacific Airlines pilot who was based in
Honolulu and flying the Australia - Hawaii route. After
about 18 months, she left him and came back to Vancouver.
To this day, 20+ years later, "studly" pilot still does not
understand why his wife was not happy to just lie on the
beach and work on her sun tan.
"You" try this for instance:
"You" are offered a job in San Francisco or Milwaukee and
move there with your spouse and three kids aged 12, 13, and
15. Your spouse gives up a $50,000 job as a non-degreed
accountant at a local hospital. (In other words, without an
accounting degree, your spouse does not qualify to work in
the U.S.).
At first, it is exciting. Your wife is setting up house
and you have a new job / territory to explore. But after
six months, she gets restless and your 15 year old is also
wanting some spending money. After all, his friends are all
selling burgers at MacDonalds, taking credit cards at the
corner gas station, or bussing tables at DENNY's.
However, "your" wife cannot work, "your" children cannot
work, and you are in trouble. If you have an L1, you can
simply have your company apply for a green (resident alien)
card for you and depending on whether you are in Pocatello,
Idaho, or San Francisco, or Atlanta, Georgia, you might be
lucky and get a permanent card in two or three years and
your spouse and kids can act like they actually "live" in
the U.S.
If you have a TN, there is a real problem. If you apply for
a resident alien card, you might not qualify for a TN any
more. In other words, applying for a green card and then
going home to Winnipeg for Xmas could result in your not
getting back into the U.S. after your Xmas vacation. I say
that you and all members of your family should never cross
the border again until you have a green card if you are
working in the U.S. with a TN and have applied for
permanent status. By never crossing the border, you do not
have to answer any questions about your status. Just make
sure that you get your TN and TD visas renewed by mail on
time.
FAMILY DYNAMICS
And let me make my point. If making enough money and not
plagued with single income financial hassles, the working
visa holder is usually happy. He or she has their job and
position and money and accolades. Everyone else is a third
class person living on allowances doled out by the sole
working person. It is a situation looking for disaster.
Rather than use one of my own clients to explain some other
consequences, I am going to use
"SUSAN'S STORY"
which I have extracted from an excellent book entitled:
NAFTA Trade Dependency:
The Ramifications, Solutions and Guidebook
for NAFTA Family Members -
$24.95 US
this book and another book entitled:
Job Mobility Across the 49th: the FAQs
$12.95 US
are available from author
Linda P Deck at:
www.pagemastersinc.com
(BARGAIN - buy both for only $28.90 U.S.)
or if you cannot order on the INTERNET, you can order at
(800) 986-2314.
If you are looking for a Xmas gift for your TD (Trade
Dependent) daughter who is living with her husband in Las
Vegas, or Atlanta, or Los Angeles or you are thinking of
getting one of these visas yourself, then these books are
what you want.
Get both.
The first explains the problems and the second gives the
FAQs (frequently asked questions) answers.
Any Canadian employer thinking of transferring a married
person south (or North to Alaska) should make sure the
employee"s spouse has read and initialed each and every page
BEFORE actually transferring the employee.
Every U.S. employer who is thinking of hiring a married
Canadian under the TN visa process should make sure that
the prospective employee's spouse has read and initialed
each and every page BEFORE actually signing up the
employee. It is far too expensive to hire and train someone
who you expect to work for 6 or 7 years only to have them
leave in 6 months.
Although the comments here apply to the spouse and children
of most (except H1A and G1A) visa holders, the worst
affected are the TN / TD combinations. The reason is very
simple. If you are offered one of the easy 63 jobs this
afternoon by fax and you have all your original degrees in
place, I can have you working legally in Chicago or Los
Angeles or Atlanta or New York tomorrow morning. Your
spouse will not even know what happened.
It is that easy. And because it is so easy, there is no
time for the spouse to really analyze what she is getting
into. The story I am reprinting here is from Page 14 of:
Linda Deck"s book "NAFTA TRADE DEPENDENCY:"
SUSAN'S STORY
Susan waited in the women's shelter reception area, hoping
against hope that she would be welcomed and given a place
to stay for the time being. Beside her sat two of her
children, a ten-year old daughter, Michelle, and a fourteen
year old son, Matthew. Would there be room at the shelter
tonight for the three of them? Would the shelter turn a
blind eye to them, as the three of them are NOT citizens or
permanent residents? Worst of all, what about her eldest,
fifteen year old Jonathon, who refused to come with them and
was still home with his father?
Susan came to the Women's Shelter today, even though the hot line worker smugly informed her that basically her only
choice is to leave the kids behind and flee the country.
The shelter could only offer very temporary assistance. Yet
it was better than the first phone call Susan had made.
The other crisis line worker was so uncomfortable with the
concept of a temporary resident needing help from the
community that the worker started giggling like a school
girl. The movie, "Not Without My Daughter" took on a whole
new meaning for Susan. If Susan had guessed for a minute
two years ago that she would be playing the leading role in
her own personal saga of "Not Without My Three Kids", she
would never have opted to accompany her husband in his
quest for adventure and different employment in the United
States.
For the past year, Susan coped with progressively worsening
marital conditions in the household. Her husband, Frank,
became increasingly demanding and showed increased stress in his daily life. Finally on Friday night, the whole
situation climaxed. Susan managed to escape with the two
younger children to seek medical attention at the hospital.
It started simply enough. The family had decided to
relocate for Frank's job and that it would be all right for
Susan not to work for a time. Susan had welcomed the
opportunity "not to work" full time and to study. She did
not realize the impact of being forcibly unemployed,
completely vulnerable and on only one income which was not
hers. They made the move from Canada to the United States.
For the first time in her adult life, Susan suddenly had
zero personal income. Gradually, Susan became aware of the
problems associated with being dependent upon another person for the very roof over her head, the food in the panty and the clothes in her and the children's closets. Being an
independent woman, this was so very different from anything
she had ever experienced before.
The finances worsened, leaving Frank and Susan's family
wondering if they could afford to make all the monthly
payments and save themselves from bankruptcy. Even though they pinched pennies, it was still not quite enough to save them from diminishing their savings account. Susan was
forced to quit her university studies, as they could not
afford the foreign student tuition bill after the second
semester on Frank's single salary.
Now that the financial stress had resulted in physical abuse
and Susan was awaiting help from society, the news she is
about to discover is not going to make her day. She will
find out that she may remain in the shelter temporarily
with her daughter Michelle. Her son, Matthew will either
have to go home to his father or to a runaway shelter for
boys. Her son, Jonathon, will stay with his father, Frank.
Susan's legal dependent status has just become void, as she
is no longer with her bread- winning husband, Frank. She
does not qualify for any social assistance in either Canada
or the United States.
Susan appears not to have any choice but to return home to
Canada with only two of her children, fracturing the family
unit and smuggling her children out of the United States.
Even though she wants to obey the law and wait for a court
date to apply for custody and permission to take the
children out of the country, her status has become void.
She has no means of supporting herself to wait for legal
custody. As a typical mother, leaving any of her children
behind with an international border between them is not an
option. To return home to Canada, she will be forced to
make the trip look like a short and happy vacation. If the
airlines or the border patrol suspect that she is taking the
children out of the country without her abusive husband's
permission, they have the right (and duty) to deny her entry
onto the airplane or into the country (CANADA). Ironically,
she is supposed to have notarized permission from her
husband to flee the country (United States) with the
children.
Adding to the stress, she realizes that she does not even
have enough money for transportation home. She will have no
choice but to leave the family house and every material item
she has ever worked for behind as she accepts donations
from her family or the (Canadian) Embassy for bus, air or
train fare. There is no possibility for the family to work
out their differences with a trail separation (within the
community). Once Susan escapes the abuse, she is stripped
of even her legal status (i.e. her U.S. TD visa is
subservient to her husband's TN visa and does not stand
alone.).
The domestic abuse shelters vary according to the length of
time that Susan may stay. Some shelters are merely on a
daily basis where she would be forced to leave the shelter
at 6 AM. Other shelters would allow her to stay for
between fourteen to thirty days. After that, she would be
on her own in a foreign country and without legal work
authorization. She may not simply transfer from one
shelter to another one. The shelters communicate with one
another. The result would be that Susan would become
banned from all the shelters in town.
Susan accidentally discovered the suffering that many
immigrant women worldwide suffer as soon as they become
immigrants or non-immigrants. This is not a new phenomenon. However this particular situation is happening under the guise of free trade. The governments promoted the NAFTA as being an alternative to waiting for permanent residency or landed immigrant status.
Susan and many others might have known some of the
challenges they were about to face if the decision had been
to relocate to a Third World overseas country (even Saudi
Arabia for instance) where females and their children enjoy
few human rights. Susan and her family merely relocated
within North America and had no idea that the hurdles
involved would be similar to moving overseas. If they had
realized the similarities of the challenges, they simply
would not have moved.
Remember, the CEN-TA Group provides Long Distance, Fax,
FEDEX and mail tax work and consulting. Our clients are in
100 countries at any one time. One of four offices, our
North Vancouver office has specialized in US / CANADIAN
corporate and personal Income Tax Preparation and
Consulting since 1969.
Remember, one more thing. $100,000 U.S. may be worth
$152,000 Canadian but ONLY if you are living in Canada.
If you are living in San Francisco, $100,000 U.S. will
likely not buy any more than:
* $110,000 CDN would buy in Vancouver,
* $85,000 CDN would buy in Calgary, and
* $75,000 CDN would buy in Regina.
(this includes housing, food, heat, light, car operation,
28% fed tax, 7% sales tax, 10% state tax, and the 15.6% U.S.
Social Security Tax.
Answers to this and other similar questions can be obtained free on Air every Sunday morning.
Every Sunday at 9:00 AM on 600AM in Vancouver, Fred Snyder of Cartier Partners and I will be hosting an INFOMERCIAL but LIVE talk show called "ITS YOUR MONEY"
Those outside of the Lower Mainland will be able to listen on the internet at
www.600AM.com
Local phone calls to (604) 280-0600 - Long distance calls to 1-866-778-0600.
Old shows are archived at the site.
This from ask an income tax immigration planning and bankruptcy expert consultant guru or preparer from www.centa.com or www.jurock.com or www.featureweb.com. Canadian David Ingram deals daily with tax returns dealing with expatriate:
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and Dallas Houston Rockwall Garland
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David Ingram's US/Canada Services
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Disclaimer: This question has been answered
without detailed information or consultation and
is to be regarded only as general comment.
Nothing in this message is or should be construed
as advice in any particular circumstances. No contract
exists between the reader & the author and any and all
non-contractual duties are expressly denied. All readers should obtain formal advice from a competent financial, or real estate planner or advisor & appropriately qualified legal practitioner, tax or immigration specialist in connection with personal or business affairs such as at www.centa.com.
This is a bad joke but sort of makes a point.
The Maine Man
Some friends were on vacation in Maine,
and while watching fireworks heard their
small son say, "Oh, God!"
The father quickly cautioned his son,
"Please don't speak the Lord's name in vain."
The boy nodded but obviously mis-heard,
because he asked quietly,
"Is it OK if I speak his name back in Minnesota?"
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