Sir,
How do I establish / what is the way of self-assessment test
for an individual to determine his or her eligibility to
immigrate to USA. I am a Canadian Citizen and living in Canada
for almost 10 years. I got job in US few times in the past 2
years (almost reached the final stage but got down the tube due
to the reasons that I am not a US citizen). Can you advise or
help me. Please advise as to what is the best way to proceed
Regards
------------------------------------------------------------
david ingram replies:
Well over 60,000 Canadians got visas in 23 hours to work in the
US in 2005 so the reason is not that you are not a US citizen.
The reason must be that you do not qualify for a visa if there
were multi rejections. There is no self-assessment test as there
is to come to Canada,
The waiting list to go on your own now is over 14 years. You
simply put in an application and get in line.
Other than that, the only practical methods are to marry an
American and be sponsored by your spouse or qualify for a
specific job.
The following will give you the basics of what qualifies - you
can find out more by going to www.centa.com and click on
"entering the USA" in the second box down on the right hand side.
IF YOU ARE GOING TO THE U.S., "IS A VISA NECESSARY?"
CANADIAN CITIZENS and most NATURALIZED CANADIANS
Most of us entering the United States are entering as visitors
for the purpose of vacationing or a day or two of shopping. In
this case, if you are a Canadian Citizen and born in Canada, a
paper Visa is not required. You are in the United States legally.
You are, "a legal alien not allowed to work" and this means just
what it says. What you have is a paperless B-2 visa.
(Incidentally, if applying for a U.S. Social Security Number
Card, it is this third category you check off, "legal alien NOT
allowed to work.")
If you are found to be working, you may be deported and not
allowed re-entry. And working can include for example, pouring a
concrete driveway at your cabin at Bemidji, Minnesota, or Point
Roberts, Washington if you intend to rent it out or sell it. (If
it is just your own cabin for personal use, you and your
immediate family can pour concrete and build it. However, your
brother, cousin and your next door neighbor from Canada are not
allowed to perform any work on your cabin.) You can supervise
the pouring of the concrete or the building of the cabin, but you
are NOT to do the work without permission from the United States
Immigration and Naturalization Service (INS). How do they find
out? A local contractor to whom you did not give the job,
"because for that much money I'll do it myself", reported you to
the Immigration and Naturalization Service (INS). (See the
preface for a story of a deportation and seizure of car for
painting a rental house).
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CANADIAN LANDED IMMIGRANTS FROM COUNTRIES OTHER THAN THE U.S.
However, you may be a legal resident of Canada, and depending
upon your country of origin (particularly if you are from Cuba
for instance) you may not be allowed into the U.S. for even a
day of shopping, or you may only be allowed into the U.S. after
obtaining a visa from the U.S. Consulate in Vancouver, Calgary,
Winnipeg, Toronto, Ottawa, Montreal, etc.
When you get this visa, it will have restrictions. It may
restrict you to only one entry, for instance. This can be a
problem if you are planning a trip across the country and wanted
to duck in and out of Canada at various points. It may be
restricted to use within a month, or be good for six months.
Check your situation if this applies to you.
Another problem is that even if you are a legal resident of
Canada (refugee status for instance) under a special visa, the
United States is another country and you may not be allowed back
into CANADA! If you find yourself having a problem with U.S.
entry, check with Canada Immigration first. When I showed this to
David Stoller, the immigration lawyer who used to be in our
office, he started giving me a long list of people with legal
status in Canada, who cannot re-enter if they leave for any
reason. If you are a refugee or claiming refugee status, stay on
the Canadian side of the border. If you leave, you will likely
not get back in.
The following five paragraphs are reprinted from the United
States CUSTOMS HINTS available at the border or from U.S.
Consulates or Embassies.
In clearing U.S. customs, a traveler is considered either a
"returning resident of the United States" or a "non-resident."
Non-resident status also applies to:
* persons emigrating to the United States
* children born abroad who have never resided in the United
States; and
* persons who left the United States after abandoning their
residence with the intention not to re-establish U.S. residency
* U.S. residents stationed or working abroad may also claim
non-resident status when returning to the U.S. for a short visit,
provided all articles, except for gifts and items consumed during
their visit, are exported upon departure from the U.S.
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WORKING?
(DON'T work without the proper visa!)
If you are NOT going to the U.S. to shop or vacation, you must be
going to do a job of some sort. The rules and dates for these
visas change in small and sometimes not-so-obvious ways. For
instance, the last three editions of this book dealt with the TC
visa (for Treaty Canada). This visa no longer exists with NAFTA
(the North American Free Trade Agreement). However, Canadians
still receive preferential treatment for entry to the US. The
new visa is a TN for Treaty NAFTA.
For instance:
* Canadian citizens are passport, visa and petition exempt and
processing is usually done solely at the point of entry. Mexican
citizens on the other hand are subject to prior Labor Department
notification, petition approval by the INS and the Consulate must
issue the visa.
i.e. * Mexican citizens are subject to procedural requirements
similar to those required by Canadians for H-2A and H-2B visa
classifications under INA 101(a)(15)(H)(i)(a) and (b).
Prospective employers of Mexican citizens must file a labor
condition attestation and obtain approval of a petition filed
with the INS.
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BUSINESS TRIPS IN GENERAL
Canadians going to the U.S. on business and saying (as most have
been) that they are on vacation or shopping, risk deportation and
the inability to conduct business in the U.S. If you do not get a
visa from the closest U.S. consular offices BEFORE going to the
U.S. on business, EVEN IF YOU ARE ONLY ATTENDING A MEETING IN
DETROIT, LEGALLY YOU ARE AT RISK, WITHOUT A VISA. You may have
gone across sixteen times or a hundred times with no problems.
But, when they do catch you without the proper visa, if you are
working, you can have big problems. It is much simpler for all
concerned to get the proper VISA. You may have to fight for it.
The Consular office will look up their rules and say "you don't
need one." However, when the man in the white shirt (INS) at the
Toronto or Vancouver airport keeps you off the plane because you
do not have a visa, you will wish you had pushed a little harder.
A Canadian looking at property to buy in the U.S. should have a
B-1 Visa for instance. Note, there is an "understood" paperless
B-1 visa. This is not adequate when you are trying to explain
yourself to an INS officer at the airport and there are 320
people lined up behind you and the plane leaves in an hour.
A client emphasized this on June 14, 1991. She and a co-worker
were on their way to the U.S. for a computer demonstration to
sell Canadian computer software. Her co-worker was detained and
refused entry to the U.S. (and missed his flight and the business
appointment) at Vancouver Airport. My client, on the other hand,
did not need a visa because she is both an American and a
Canadian citizen (dual citizenship). However, how do you tell the
people you are going to see that your fellow worker was not
allowed into the country?
And it works in reverse. I have had to fill in as speaker and
guest lecturer for Americans who were not allowed into Canada.
In one instance, 50 people had paid $600 for a 2 day course in
Edmonton. The promoter would have had to pay back $30,000 if I
had not been available to teach the specific course.
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CRIMINAL or QUASI CRIMINAL RECORD
When a Canadian receives an absolute or conditional discharge,
he or she does NOT have a Canadian criminal record. However, the
U.S. looks at the charge and the disposition and says, "it would
have been in the U.S. and bans the Canadian who typically sits
there with a dumbfounded look on his or her face. In addition, a
stay of proceedings is NOT a dismissal as evidenced by the
renewal of stayed "sex" charges against former Nova Scotia
Premier Gerald Regan.
An American may be banned from Canada as well.
In August, 1992 a Canadian immigration official at Vancouver
Airport turned away a gentleman from Atlanta, Georgia. This
gentleman was the great-nephew of the discoverer (Carmacks) of
the gold claim which started the Klondike gold rush. He was in
possession of a personal letter from Eric Neilsen, the acting
Prime Minister of Canada. The letter was an invitation for Mr.
Carmacks to be a guest of honor at the 50th Anniversary of the
Alaska Highway. This particular ceremony was to be held in
Carmacks in the Yukon Territory. He was turned down because of an
8 year old conviction in the U.S. for DUI (driving under the
influence). As an aside, Mr. Carmacks, the gentleman turned away
by the Canadian Immigration officer was the deputy head of the
FBI in Atlanta, Georgia.
In another case relayed to me by former Vancouver police officer
Don Bellamy, the US citizen employee of a Bellingham Airport
business was using a borrowed forklift to load a sign on his US
registered truck at the Langley airport. An RCMP officer asked
him about his actions and after determining that the fellow did
not have a permit to work in Canada, arrested him. The poor
truck driver who was only using the forklift because everyone had
gone home spent Friday night, all day Saturday, all day Sunday,
all day Monday, and Tuesday morning before an immigration judge
told him to go home. You see he could drive the truck into
Canada, park it while a Canadian resident loaded the sign, and
drive out of Canada; he just can't load the truck.
Back to Top
TIME
March 6, 1995. A visa is only good for the time stated. Holding
over can have dire consequences. While I was at the airport U.S.
immigration counter today, I couldn't help (honest) overhearing
the troubles a chiropractor was having. The chiropractor had a TN
visa, which had expired in January and had stayed over "as an
unpaid observer." He had come back up to Vancouver for a couple
of days to get a renewal of his TN visa. The INS officer didn't
believe that he had stayed as an "observer" for five weeks. And
it did not matter anyway. He did not have the right to stay as a
visitor when the TN expired. In addition, he did not have any of
the requirements for a TN with him at the airport (read further
on). When I left the area, the chiropractor's wife was phoning
their immigration lawyer and they were missing their plane, which
was leaving in twenty minutes. Note that an admission of holding
over now can result in an automatic banning from the USA for 3, 5
or 10 years.
My thanks to Dennis Olsen [(206) 304-1030], the former U.S.
Consul in Vancouver, who assisted me with my update from the
third edition to the fourth edition. His sharp eye spotted an
error in the H-1 visa area. This error made it through three
previous editions. If your business or "liberty" depends on
something read in this book, please check further with a
professional advisor. We held the publication of this book over
to pick up any relevant details from the Feb 27, 1995 CANADIAN
BUDGET. By the luck of the draw, February 27, 1995 also marked
the implementation of new visa regulations. Craig Barnett of
Michael Jacobsen's immigration law office was kind enough to get
me a copy of the latest rules at the time.
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WHAT KIND OF VISA DO I NEED?
A-1 - Ambassador, Public Minister, Career Diplomat or Consular
Officer, or Immediate Family
A-2 - Other foreign Government Official or Employee, or Immediate
Family
A-3 - Attendant, Servant, or Personal Employee of A-1 or A-2 or
immediate family
B-1 - BUSINESS VISITOR
One of the few paper B-1 visas I have seen issued (I have one as
well) was for a lady client who decided to rent an apartment in
Los Angeles because she was there for a week each month and she
wanted a base of operations from which to sell her Canadian
business's services. The problem was that when she went to ship
a bunch of her furniture down, U.S. immigration officers would
not let her enter because it looked like she was moving to Los
Angeles. She had to produce copies of her Canadian documentation
showing a current phone hooked up, a current mortgage for her
residence in Canada before the INS officers would let her or her
furniture across the border. One of her problems was that she had
business cards with her that showed a Los Angeles address. She
was hardly trying to "sneak" across with a truck full of
furniture, but it sort of looked like it.
If you are in the States working at investment activities or
trading in international goods or services, this may be for you.
The Border Immigration people do not like to issue B-1 or B-2
visas to Canadians as it implies a more official status (i.e.
persons with the paper visa often think they have a "working
visa" when they do not). But if there is a good reason, they
will, if requested on BENT knee, issue a paper visa. Persons
generally covered include, but are not limited to:
* Advertising Personnel
* Bankers
* Bus Drivers taking passengers in or out of the U.S. but not
between two U.S. destinations. (I was told by a U.S. Immigration
Officer on May 21st, 1991 that this is not "automatic" either.
Bus drivers in this situation are there by the "grace of the
immigration officer" and may be rejected at will. A regular
"Canada to Reno or Atlantic City" tour bus driver might want to
get an official status B-1.
* Chartered Accountants, CGA's, RIA's (but only if paid by Canada
and looking at the books of a subsidiary for instance) to work
there in an occupation, you would need a TN visa explained
further on.
* Combine owners directing crews
* Computer Specialists
* Customs Brokers
* Dentists
* Doctors
* Engineers - An engineer from Montreal was challenged by INS for
his activities in the U.S. He was calling on businesses in the
U.S., getting work, and taking it back to Montreal where the
actual work was done. INS determined that his activities in the
U.S. amounted to a sales activity (legal) and that the work was
being performed in Canada.
* Installers, repair or maintenance personnel performing
installation or repair of imported machinery. There MUST be an
existing service contract or warranty problem. The warranty or
service problem must be from the original sale of the product. A
Canadian company cannot sell a warranty service into the U.S. and
send their service technicians into the U.S. for this new
contract.
* Interpreters
* Investment Brokers
* Lawyers
* Market Researchers
* Professionals of many sorts (check with INS)
* Public Relations Personnel
* Real Estate Agents (only as an investment advisor / looker -
this does not allow the person to negotiate a deal except on
their own account). Note, an INS officer at Blaine did not like
Realtors listed in this category in the book. I was going to take
it out, but an INS officer at Vancouver Airport thought it was
fine. This is another reason for getting a paper visa and making
it official.
After all, it is far more likely that the INS office at Blaine
has had a problem with Realtors ducking down to Whatcom County
than the airport has had with Realtors heading to Phoenix or
Hawaii. NOTE! The Realtor who does this may find him or her self
in violation of the local Real Estate Laws of the State he or she
is operating in. A Washington State Realtor, for instance, is
not allowed to come to British Columbia and negotiate a deal and
be paid because he or she is not licensed in BC. I do however,
have "dual citizen" Realtor clients with licenses in Washington
and BC.
* Sales Agents taking orders or negotiating contracts (Note - the
sales agent cannot deliver the goods or pick up the payment for
the order - payment should be mailed to Canada by the American
purchaser).
* Tour / Travel Agents and Guides (but only with a Canadian tour
which starts in Canada - no one can join the tour once across the
border).
* Translators
* Truck Drivers delivering or picking up goods within the U.S.
(NOTE! They may not transport goods between two U.S. points. The
driver may NOT unload the truck.)
In the Case of a B-1, the salary must be paid from Canada and the
stay is expected to be short. Short is not defined but likely
means two or three days or a couple of months at most. Remember,
if you earn money in the U.S., even if paid by Canada, you should
be filing a U.S. 1040NR tax return. If you earn less than $10,000
U.S., you do not pay federal tax. However, if you are working in
California, even if paid from CANADA, you must file a California
540NR and will likely be taxable. The tax paid to the U.S. in
both cases is deductible on the Canadian Return as a foreign tax
credit.
B-2 - Temporary Visitor for pleasure
No paper usually required or issued for Canadians, but this is
what we receive automatically as Canadians. This is a six month
visa for a visitor to the U.S. on vacation. The holder of this
visa cannot work or go to school.
B-1/B-2 - Temporary visitor for Business & Pleasure under
101(a)(15)(B) If you are going to Florida to play golf and check
out some real estate investments while there, TELL the INS
officer at the border. You will get a paperless B1/B2. Telling
them you are going to play golf when you are checking out a
pre-arranged business opportunity is illegal and can result in
imprisonment and the seizure of your car, motor home, or truck
and fifth wheel trailer.
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C-1 - Alien in Transit
C-2 - Alien in Transit to United Nations Headquarters District
under Section 11.(3),(4), or (5) of the Headquarters Agreement
C-3 - Foreign Government Official, Immediate family, Attendant,
Servant, or Personal Attendant in Transit
D - Crew Member (Sea or Air)
When I started in this business in 1966, this was called a
"VISITING SEAMAN" visa. It is interesting because the crewman of
a plane or boat may find themselves taxable in the U.S. for the
monies earned while in U.S. waters or flying over U.S. territory
when based in the U.S. [For instance, a crewperson based in
Hawaii and flying to Australia with a Canadian Airline. (Note,
there is a $15,000 exemption, but a tax return should be filed to
claim the exemption).]
E-1 - Treaty Trader, Spouse or Child under 101(a)(15)(E)(i)
The Canadian in the States must be representing a U.S. office
doing OVER 50% of its business with Canada. The activities can
include accounting, advertising, banking, communications, data
processing, designing, engineering, management consulting, and
tourism.
E-2 - Treaty Investor, Spouse or Child under 101(a)(15)(E)(ii)
Back to Top
This applies to a Canadian who is developing or directing a
business in the United States wherein the Canadian has invested
substantial risk capital. The visa is for five years and is
renewable.
If the business is worth $50,000 or less, the Canadian should
expect to put up 90 to 100% of the $50,000. $100,000 to $500,000
businesses require 75 to 100% of the capital to be put up.
$500,000 to $1,000,000 businesses require 60% of the risk capital
to be put up by the Canadian. If the business is worth over
$1,000,000, 50% of the capital will likely suffice. It is
important to seek competent help BEFORE making your offer to buy
the business so that the purchase is structured to take advantage
of these limits.
The individual investor / director does not need to control the
company but over 50% of the company must be owned by Canadian
citizens. An E-2 may not be a "worker" unless one of extreme
specialized knowledge. He or she is only allowed to work in an
executive, managerial, or supervisory capacity unless they have
superior technical knowledge required to service complex products
sold in the course of the business's trade between the two
countries.
If you are interested in this category, phone (604) 913-9133 for
a copy of my January, 1995 CEN-TAPEDE. This four-page newsletter
was written by Dennis Olsen J.D., the former U.S. Consul in
Vancouver.
** None of categories (B-1, E-1, E-2, H-1, H-2, H-3 or L-1)
confer or imply a permanent status in the U.S. They are (or
should be) instantly revoked if the status of the employee
changes (if the Canadian Company closes or if the NATIONALITY of
the ownership changes in some cases). Anyone going to the U.S.
under any of these visas should consider their situation
temporary. If it is their intention to remain in the U.S., they
should start immediately through the normal and time-consuming
immigration channels. Please note also, that the "working part"
of the visa only applies to the employee. Spouses and children
are not allowed to work in the U.S. in these circumstances. I
have also heard of their having problems with schooling costs.
For instance a school district may charge for otherwise free
schooling because the parents are not actual immigrants. Nicole
Carlson from Vancouver (www.natda.org) is presently suing the
State of California because they want to charge her $17,500
tuition as a non-resident student even though she has been there
3 years with a legitimate visa.
California went even further in the fall of 1994 with Proposition
187. This proposition proposed to stop the provision of "any"
state services to individuals who were not U.S. citizens. In
other words, you would "pay as you go", until you became a
citizen. [Did not pass.]
My favorite story here involves a client who went to the States
under an H-2 temporary worker visa. He had barely arrived in the
U.S. when the plant he went to work at closed down. Seeing an
opportunity, he arranged to take over the premises from the
receiver and developed a successful business, which he operated
for seven years. He was then offered a lot of money for it and
sold out so that he could return to Canada and marry his
girlfriend who wanted to remain in Canada and had refused to move
to the States. During this period of time, he had never given two
thoughts (he said) to his visa status, but had bought a house in
the U.S., and had come back to Canada at least 2 times a month
over the 7 years.
On his LAST official trip to sign the papers and pick up his
check, U.S. immigration pulled him in for a routine check
(something had aroused their interest). INS would not allow him
into the U.S. because he did not have a visa to conduct business
and Canada would not allow him into Canada with his U.S.
registered car because he did not have a valid U.S. visa (As you
will find out in more detail later on in this book, if you do not
have a valid visa to live in the States, you cannot drive a U.S.
registered car in Canada). It is possible to pay duty on a U.S.
registered car and drive it in Canada, but the border people
really have trouble with this. His frantic phone calls to our
office from the border resulted in a 48-hour temporary entry to
the U.S. and we arranged for the importation of the car into
Canada. But we had to find a friendly INS officer in San
Francisco to allow him in. He nearly blew the million dollar
deal by not making it to the signing.
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F-1 STUDENT
Canadian students can obtain status by presenting an I-20 from
the school at the border. The resulting F-1 visa is limited to
the duration of the course and study with an extension of up to
one year available for practical training.
F-2 Spouse and children of student
Students can sometimes apply for permanent status after two years
or so.
G-1 - Principal Resident Representative of Recognized Foreign
Government to International Organization, Staff, or Immediate
Family
G-2 - Other Representative of Recognized Foreign Member
Government to International Organization, or Immediate Family
G-3 - Representative of Non-recognized Non-member Foreign
government to International Organization, or Immediate Family
G-4 - International Organization Officer or Employee, or
Immediate Family
G-5 - Attendant, Servant, or Personal Employee of G-1 through G-4
or Immediate Family
H-1A - Registered nurse under 101(a)(15)(H)(i)(a)
H-1B - Alien in a Specialty Occupation (Profession) under
101(a)(15)(H)(i)(b)
This is usually used to get University Lecturers or Speakers into
the U.S. The person is usually a professional of distinguished
merit and ability going to perform a job which requires these
specific qualities.
The person must be pre-eminent in his or her field. Usually they
will have a minimum of a B.A. and there will be professional
articles, newspaper articles, significant awards, etc., which
attest to the person's prominence.
Although I have no personal knowledge of this, I understand that
both David Barrett, the former Premier of British Columbia, and
Kim Campbell, the first woman Prime Minister of Canada, went to
teach Politics at Harvard University under this visa.
H-2A - Temporary Worker Performing Agricultural Services
Unavailable in the United States (Petition filed on or after June
1, 1987) under 101(a)(15)(H)(ii)(a)
H-2B - Temporary Worker Performing Other Services Unavailable in
the United States (Petition filed on or after June 1, 1987) under
101(a)(15)(H)(ii)(b)
H-3 - Trainee under 101(a)(15)(H)(iii)
This requires a formal classroom training situation with no
production of product. If actual production of a finished good is
the result, it must be necessary for the training and experience
and cannot be the reason for the trainee's visit to the U.S.
H-4 - Spouse or Child of Alien under H-1A/B, H-2/B or H-3 under
101(a)(15)(H)(iv)
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For these categories, there must be a shortage of workers in the
field. It can be used for any occupation but the shortage of
workers must be certified by the State Employment Office where
you wish to work. In addition, you must get your Alien Labor
Certification through the U.S. Department of Labor. This process
will usually take several months because the employer must have
advertised locally for some time to prove to the authorities that
no local workers are available and that you will fill the
position.
Of course, if the employer has already been advertising
throughout the U.S. and Canada for sixteen months, you may find
yourself moving in two weeks.
I - Representative of Foreign information Media, Spouse and Child
under 101(a)(15)(I)
J-1 - Exchange Visitor
J-2 - Spouse or Child of J-1
K-1 - Fiancé(e) of United States Citizen
K-2 - Child of Fiancé(e) of United States Citizen
L-1 INTRA-COMPANY TRANSFEREE (Executive, Managerial, and
Specialized Knowledge Personnel Continuing Employment with
International Firm or Corporation under 101(a)(15)(L)
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This is the best of the visas in the long run and the one which
has the best chance of bestowing permanent status (green card) in
the U.S. on the visa holder. On the other hand, it is not
permanent either. It is issued in two year increments with a
seven-year cap for managers and executives and a five-year limit
for specialized knowledge employees. New business employees only
receive a one-year visa to start.
The problem is that a new person appointed as a BOARD MEMBER may
not qualify because:
To qualify for an L-1, the person must have been employed in a
managerial, supervisory, or extremely technical and necessary
position with the parent company for at least one year prior to
the transfer. (Note, since this was originally written, the rule
has changed to allow someone who has left the company's employ to
use prior employment with the company to qualify.)
The transfer must be to work in or establish a branch of the
parent company and the visa holder must continue in that
managerial, supervisory or highly technical role.
In addition, the Canadian company must remain in business in
Canada. The transfer cannot be the result of the closing of a
Canadian branch or company.
With this visa, the visa holder can continue to work in both
countries and move back and forth at will. He or she may be paid
by the U.S. or Canadian Office. However, the visa holder must be
WORKING in the U.S., not just attending meetings or training
sessions, etc. The visa holder must also pay tax on his or her
earnings in the U.S. even if the money is paid by the Canadian
company. Because of the Foreign Tax Credit, if the monies are
being paid by a Canadian company and if the employee is still
taxable in Canada because his or her family is still in Canada,
it will be necessary to file both U.S. and Canadian federal
income tax returns. It might also be necessary to file a Quebec
return if the family is in Quebec and of course, if the work is
in one of the 43 states, which require a state form to be filed,
one would have to file that (or those) state's income tax
returns. (A sports figure like Wayne Gretzky has to file a return
for each state he plays a game in, makes a public appearance in
or can be shown to work in.) With foreign tax credits, there is
not usually any tax to pay.
Canadians going south make a decision on tax based upon the
federal rate and forget about the variable state, city, and even
"county" income taxes in some places. (New York City and Grand
Rapid residents pay income taxes to the city, the county, the
state, and the federal governments. They also forget to add in
the cost of garbage, schooling, libraries, car licenses and
medical coverage, which are traditionally higher because the
"INCOME TAX IS LOWER." As an example, a car license, which is $41
Canadian in Canada, can be $450 U.S. for a $15,000 car in the
some states. The State of Washington has cancelled this tax
recently.
U S Companies with Canadians sitting on their boards as
directors. My last edition of this suggested that there was a
problem with a Canadian attending board meetings of an American
Company in the USA. I asked Terry Preshaw this specific question
on CFUN and although she was unsure when I asked the question
managed to find out the answer during one of the breaks. Section
214.2(b) of the operating Instructions manual clearly allows
Canadian Board Members of an American Company to attend board
meetings of the American Company within the USA. If you are a
board member, remember this and have it written somewhere on your
person. A letter from your American Company inviting you to the
Board Meeting and stating the clause you are admissible under
would also be handy to have in your documentation.
I bring this up because I have heard of many instances when INS
has turned board members back at the border officers at airports.
Board members have been in the habit of saying they are going on
vacation or on a selling trip or some other white lie to avoid
confrontation. Under the new "EXPEDITED REMOVAL" rules, if the
INS officer feels you have lied to him or her, he or she can ban
you from the US for 5 years with no appeal process. If the same
officer changes their mind twenty minutes later and sees you
walking through the airport, they cannot cancel their ruling. and
as Ronald Hays, Chief of Inspection Operations for the INS at
Seattle, Vancouver, Alaska, etc., said on May 18, 2000 at a
Vancouver seminar put on by the BCISIT (British Columbia
Institute for the Study of International Trade), "It does not
matter how wrong I think an agent was to ban someone, I can't
reverse the decision".
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L-2 Spouse and Children of Intra-company Transferee
M-1 - Vocational Student or Other Non-academic Student
M-2 - Spouse or Child of M-1
N-8 - Parent of an Alien Classified SK-3 Special Immigrant under
101(a)(15)(N)(i)
N-9 - Child of N-8 or of an SK-1, SK-2, or SK-4 Special Immigrant
under 101(a)(15)(N)(ii)
NATO-1, 2, 3, 4, 5, 6 and 7 - Delegates and Members of their
Families to the North Atlantic Treaty Organization
O-1 - Alien with Extraordinary Ability in Sciences, Arts,
Education, Business, or Athletes under 101(a)(15)(O)(i)
O-2 - Accompanying Alien
O-2 - Spouse or Child of O-1 or O-2
NOTE - Most Visas have to be applied for by the company or
organization requesting the services of the worker, or student,
etc. The following "P" classification visas can be applied for
by the individual themselves.
P-1 - Internationally Recognized Athlete or Member of
Internationally Recognized Entertainment Group under
101(a)(15)(P)(i)
P-2 - Artist or Entertainer in a Reciprocal Exchange Program
P-3 - Artist or Entertainer in a Culturally Unique Program
P-4 - Spouse or Child of P-1, P-2, or P-3
Q-1 - Participant in an International Cultural Exchange Program
R-1 - Alien in a Religious Occupation under 101(a)(15)(R)(i)
R-2 - Spouse or Child of R-1
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The following S Classifications were added September 13, 1994
when President Clinton signed the Violent Crime Control and Law
Enforcement Act of 1994.
S-1 - Certain Aliens Supplying Critical Information Relating to a
Criminal Organization or Enterprise
S-2 - Certain Aliens Supplying Critical Information Relating to
Terrorism TC TREATY CANADA - This visa no longer exists - It was
replaced by the TN Classification under 214(e)(2) on visa below
My particular thanks here to Michael Jacobsen [(604) 608-8787]
who sent me 7 pages of suggestions for my update from TREATY
CANADA to TREATY NAFTA rules. Michael is a licensed lawyer in BC
and Washington State and a member of the American Immigration
Lawyers Association.
On December 8, 1993, President Clinton signed the NAFTA
Agreement, which took effect on January 1, 1994 under
101(a)(15).
TD - Spouse or Child of NAFTA Professional under 214(e)(2) (TN
holder)
TN - NAFTA Professional - (North America Free Trade Agreement)
PROFESSIONAL BUSINESS PERSON
A professional is defined as a person with a minimum of a
bachelor's degree, who applies for a position, which requires a
degree as its minimum entry-level requirement unless otherwise
specified.
This is the one we heard about in the news. To meet this
classification which is unique to Canadians, you must have a bone
fide job offer and all licenses and degrees in place for your
profession.
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CHECK LIST for the TN Visa
* An applicant for admission must establish Canadian
citizenship
* The applicant must be entering the United States to engage
in a profession or occupation at a professional level under NAFTA
* The applicant must be in possession of an offer or contract
of employment from a United States employer stating:
1) The professional activity to be engaged in
2) Purpose of entry
3) Remuneration
4) That the position is temporary in nature and will
not exceed one year (although it can be renewed)
* The applicant must provide documentation of his or her
educational degree or professional qualifications
* The applicant must meet all licensing requirements
* Employment need not be full-time
* Permanent residence abroad is not a prerequisite
* Maximum period of admission of a TN is one year
* TN dependants accompanying the principal TN will be admitted
under the "TD" classification for the same amount of time as the
principal
* A $56 U.S. fee is required ($85.00 for renewal by mail)
* TN applicants are not permitted to enter as a professional to
participate in any way to circumvent a strike
* SELF EMPLOYMENT IS NOT PERMISSIBLE
The following is a partial list of some who qualify under a TN
Visa. Please note that extensive experience can equal a degree in
many cases. All need a Bachelor or Baccalaureate degree unless
otherwise noted. In some cases, 3 or 4 years of practical work
in a discipline can count for one year of a University degree.
Therefore if the University BA requires 3 years, you need 9 or 12
years of work experience to qualify.
Back to Top
* Accountants - RIA or SIA or CPA or CGA or CMA or CA
** Actuaries (this is one of two classifications added since
1989)
* Agriculturalists
* Agronomists
* Animal Breeders
* Animal Scientists
* Apiculturist
* Architects - BA or state / provincial license
* Astronomers
* Biochemists
* Biologists
* Botanists
* Chemists
* Computer Systems Analyst - BA or Post-secondary Diploma or
Post-secondary certificate and three years of practical
experience. This does not get you to the USA, if your job is
programming a computer. An Analyst might spend a day a month
working on some modifications (in a testing mode for instance),
but they better not be thought of as a "programmer" within the
company.
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**** Computer Software Engineer *** This is NOT here as an
approved occupation. However, Jackie Bednarz (US head of the
NAFTA Section 16 Working group in Washington stated specifically
that if a recognized University was to offer the degree, she
would consider computer software engineers under the ENGINEER
classification when a recognized University granted the degree.
My understanding is that SFU and McGill are now granting such
degrees and that the Professional Engineers of British Columbia
have recognized graduates as members of their professional
society. Note that TC and TN's were being granted for this
category on a sporadic basis until the INS realized that no such
"official" degree existed.
Jackie Bednarz also pointed out (She was part of the original
negotiating team when the original FTA (Free Trade Agreement) was
being negotiated in 1985, 86, 87 and 88, there was no such thing
as the INTERNET, "web masters" and "web sites". When negotiating
the job titles, no thought was given to the computer revolution,
other than the computer system analyst designation, which at the
time meant a main frame analyst for a $1,000,000 computer.
(Thanks to Stuart Lynne and Richard Pitt) (www.fireplug.net), the
CEN-TA Group was an official member of the internet as far back
as 1986 and thanks to Bill Gates himself (he told me to use
Microsoft Xenix as my operating system) and Radio Shack Model 16
computers, CEN-TA was using "email" between offices in Toronto,
Ottawa and Vancouver as early as 1983.
As another aside, Stuart Lynne and Richard Pitt went on to found
WIMSEY, the FIRST ISP in CANADA. Bill Gates became quite famous
as well.
Back to Top
* Dairy Scientists
* Dentists - DDS, DMD, or state / provincial license
* Dental Technicians
* Dietician
* Disaster Relief Insurance Claim Specialists - (claims adjuster
employed by an insurance company located in the territory of a
party or an independent claims adjuster) - BA and successful
completion of training in the appropriate areas of insurance
adjustment pertaining to disaster relief claims; or, three years
experience in claims adjustment and successful completion of
training in the appropriate areas of insurance adjustment
pertaining to disaster relief claims
* Doctors - (see physician further on)
* Economists
* Engineers - BA or state / provincial licensing
* Entomologists
* Epidemiologists
* Forester - BA or state / provincial licensing
* Geneticists
* Geochemist
* Geologist
* Geophysicists (including Oceanographer in the United States)
* Graphic Designer - BA or post-secondary diploma and three years
experience.
* Hotel Managers - BA in hotel / restaurant management; or,
post-secondary diploma or post-secondary certificate in hotel /
restaurant management and three years experience in hotel /
restaurant management
* Horticulturist
* Industrial Designer - BA or post-secondary diploma or
post-secondary certificate and three years experience
* Interior Designer - BA or post-secondary diploma or
post-secondary certificate and three years experience
* Journalist BA plus three years experience - (This category is
no longer valid and has been left in to explain the
circumstances. As I understand it, journalists in general took it
as an insult that they had to have a BA degree, because, "most,
if not all," of the best known journalists do not have a BA
degree.)
* Land Surveyor - BA or state / provincial licenses
* Landscape Architect
* Lawyer (including notary in the Province of Quebec) - LLB, JD,
LLL, BCL degree (five years); or membership in a state or
provincial bar
* Librarians - MLS or BLS (for which another BA was a
prerequisite)
Back to Top
* Management Consultants - BA; or equivalent professional
experience as established by statement or professional credential
attesting to five years experience as a management consultant, or
five years experience in a field of specialty relating to the
consulting agreement. I must make it clear here. A Management
Consultant is NOT a manager. The surest way to lose your
management consultant renewal is to show up at the border with a
business card with the title General Manager, Western Region, or
Human Resources Manager, or, or, or. A management consultant
could consult with the actual sales manager about sales
techniques or about selling into Canada. A management consultant
could be advising the actual human resources manager in hiring
techniques or even suggesting that one candidate is a better fit
than another one. A management consultant can do market
research, gather and assemble data and write a report to give to
the manager. This is likely the hardest TN visa to get but is
also a very important one when it comes to serving the needs of
the US company.
Note that the management consultant does NOT need a degree, just
five years experience. This is the perfect job description for
the person with 23 years of job experience who has never gone
through the formal process of getting a university degree in the
discipline.
* Mathematician (including statistician)
* Medical Laboratory Technologist (Canada) / Medical Technologist
(U.S.) - BA; or post-secondary diploma or post-secondary
certificate and three years experience
* Meteorologist
* Nutritionist
* Occupational Therapist - BA; or state / provincial license
* Organic Chemist
* Pharmacologist (Pharmacist) - BA; or state / provincial license
* Physician - (teaching or research only), MD or state
/provincial license. To work as MD, a doctor must pass his MLE
(medical licensing exam), which has three, parts written over a
year. After passing, he or she would enter the U.S. under an
H-1A.
* Physicist (including oceanographer in Canada)
* Physiotherapist/Physical Therapist - BA; or state
/provincial license
* Plant Breeder
** Plant Pathologists (This is one of two professions added since
1989)
* Poultry Scientist
* Professional (most recognized professions)
* Psychologists - state / provincial license
* Range Conservationist
* Recreational Therapist
* Registered Nurse - state / provincial license
* Research Assistant (working in post-secondary educational
institution)
Back to Top
- * Scientific Technician - Possession of: (a) theoretical
knowledge of any of the disciplines: agricultural sciences,
astronomy, biology, chemistry, engineering, forestry, geology,
geophysics, meteorology, or physics; and (b) the ability to solve
practical problems in any of those disciplines, or the ability to
apply principles of any of those disciplines to basic or applied
research.
* Social Worker
* Soil Scientist
* Sylviculturist
* Teacher (College, Seminary, or University) (Post Secondary
level only)
* Technical Publication Writer - BA, or post-secondary diploma or
post-secondary certificate, and three years experience
* Urban Planner (including geographer)
* Veterinarian
* Vocational Counsellor
* Zoologist
Back to Top
SUBJECT TO CHANGE
This list is subject to change at any time. When talking to
Dennis Olsen about updating the rules, I mentioned a nurse who
had found out that nurses could go south instantly in the late
1970's. She got a job offer from a Hawaii hospital, came back to
Vancouver, quit her job, sold her house, kicked out her husband,
gave away the dogs and showed up at the airport to move to
Hawaii, only to find out that they had closed the quota for
nurses.
And then, as I was writing this exact section of the book in
March, 1995, I received a call from a Doctor who had a job offer
from the U.S., sold his house and Canadian practice, only to be
told that he did not qualify when he showed up at the border
because although a practicing family physician in Canada and
fully qualified to go south with a Green Card (a resident alien
immigrant visa), he did not qualify as a TN (can only teach or do
research) and he did not qualify as an H-1B because he had not
written an MLE. This medical licensing exam is written in three
stages over a one year timetable. I guess he has to sue his
immigration attorney in Los Angeles. This attorney knew he did
not have his MLE, but charged him significant monies and told him
he could get in now!
Remember, NONE of the foregoing confers permanent status. For
permanent status, you must still stand in some sort of line.
However, it seems to be true that if you are in the U.S. as a TN
or as a L-1, your line moves much faster than if you start from
out of the country.
Back to Top
W A R N I N G
March 8, 1995 - When a Canadian leaves Canada to move to the
U.S., there is a departure tax. This means that all of the
Canadian's assets are deemed "to have been sold" at fair market
value the day before he or she leaves. If there are "paper
profits," tax is due on this paper profit although a bond may be
posted. The United States did not have this departure tax because
the U.S. citizen has to keep on filing U.S. FEDERAL INCOME TAX
RETURNS while out of the country for as long as they remain a
U.S. citizen. If they gave up their citizenship, they could own a
million dollars worth of assets that they had paid a dollar for
and their "paper profit" would have just disappeared into the
mist. Section 352 of the new Legal Immigrant and Illegal
Immigrant Responsibility Act of 1996 states that the U.S. Citizen
who gives up their citizenship to avoid U.S. income taxation is
also banned from ever returning to the U.S. for any purpose.
Back to Top
NO LONGER!
On February 6, 1995 a departure tax was passed for U.S. citizens
giving up their citizenship. This means that when a U.S. citizen
gives up their citizenship, they are taxable as if they sold
everything and died the day they give up their citizenship and
there will be a departure tax on their world wide assets. As of
today, March 8, 1995, I have no idea what the form will look
like. The U.S. also continues to tax the income of its
ex-citizens for ten years after they give up their citizenship if
the reason for giving up the citizenship was to avoid U.S.
income, gift, and estate taxes. And the question is why would
anyone give up U.S. citizenship for any reason other than to
avoid income, gift and estate taxes?
==============================
David Ingram's US / Canada Services
US / Canada / Mexico tax, Immigration and working Visa
Specialists
US / Canada Real Estate Specialists
My Home office is at:
4466 Prospect Road
North Vancouver, BC, CANADA, V7N 3L7
Cell (604) 657-8451 -
(604) 980-0321 Fax (604) 980-0325
Calls welcomed from 10 AM to 10 PM 7 days a week Vancouver (LA)
time - (please do not fax or phone outside of those hours as
this is a home office)
email to taxman at centa.com
www.centa.com www.david-ingram.com
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 and the author and any and all non-contractual
duties are expressly denied. All readers should obtain formal
advice from a competent and appropriately qualified legal
practitioner or tax specialist for expert help, assistance,
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message, this disclaimer must be included."
Be ALERT, the world needs more "lerts"
David Ingram gives expert income tax & immigration help to
non-resident Americans & Canadians from New York to California to
Saudi Arabia to Mexico to China or Chile - Cross border, dual
citizen - out of country investments are all handled with
competence & authority.
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David Ingram expert income tax help and preparation of US Canada
Mexico non-resident and cross border returns with rental dividend
wages self-employed and royalty foreign tax credits
This from "ask an income tax and immigration expert" from
www.centa.com or www.jurock.com or www.featureweb.com. David
Ingram deals on a daily basis with expatriate tax returns with:
multi jurisdictional cross and trans border expatriate problems
for the United States, Canada, Mexico, Great Britain, United
Kingdom, Kuwait, Dubai, Saudi Arabia, Thailand, Indonesia, Japan,
China, New Zealand, France, Germany, Spain, Italy, Russia,
Georgia, Brazil, Peru, Ecuador, Bolivia, Scotland, Ireland,
Hawaii, Florida, Montana, Morocco, Israel, Iraq, Iran, India,
Pakistan, Afghanistan, Mali, Bangkok, Greenland, Iceland, Cuba,
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Grand Cayman Aruba Zimbabwe South Africa Namibia help USA US
Phone consultations are $400 for 15 minutes to 50 minutes
(professional hour).
This is not intended to be definitive but in general I am quoting
$800 to $2,000 for a dual country tax return.
$800 would be one T4 slip one W2 slip one or two interest slips
and you lived in one country only - no self employment or rentals
or capital gains - you did not move into or out of the country in
this year.
$1,000 would be the same with one rental
$1,200 would be the same with one business no rental
$1,200 would be the minimum with a move in or out of the country.
These are complicated because of the back and forth foreign tax
credits. - The IRS says a foreign tax credit takes 1 hour and 53
minutes.
$1,500 would be the minimum with a rental or two in the country
you do not live in or a rental and a business and foreign tax
credits no move in or out
$2,000 would be all of the above and you moved in and out of the
country.
This is just a guideline for US / Canadian returns
We will still prepare Canadian only (lives in Canada, no US
connection period) with a three or four slips and no capital
gains, etc. for $125.00 up.
With a Rental for $300
A Business for $300 - Rental and business likely $400
And an American only (lives in the US with no Canadian income or
filing period) with about the same things in the same range with
a little bit more if there is a state return.
Moving in or out of the country or part year earnings in the US
will ALWAYS be $400 and up.
TDF 90-22.1 forms are $25 for the first and $10.00 each after
that when part of a tax return.
8891 forms are generally $50.00 to $100.00 each.
18 RRSPs would be $900.00 - (maybe amalgamate a couple)
Capital gains *sales) are likely $50.00 for the first and $20.00
each after that.
Just a guideline not etched in stone.
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