Canadian and Mexican Citizens?

The U.S. is Open for Business.


The North American Free Trade Agreement (NAFTA), an agreement that created special economic and trade relationships for the U.S., Canada, and Mexico, has created a unique opportunity: TN nonimmigrant status.

TN status is available to qualified Canadian and Mexican citizens who are seeking temporary entry into the United States to engage in business activities at a professional level.

Requirements for TN applicants

Who is Eligible for the TN Nonimmigrant Status

The applicant is a citizen of Canada or Mexico
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The applicant’s profession qualifies under the regulations
The position in the United States requires a NAFTA professional
The applicant has a prearranged full-time or part-time job with a U.S. employer (but not self-employment)
The applicant has the qualifications to practice in the profession in question

The Filing Process (for Canadian Citizens)

1. Canadian citizens are not required to apply for a TN visa at a U.S consulate.

2. The Canadian citizen may establish eligibility for TN classification at the time the Canadian citizen seeks admission to the United States by presenting required documentation to a U.S. Customs and Border Protection (CBP) officer at certain CBP-designated U.S. ports of entry or at a designated pre-clearance/pre-flight inspection station. You must provide the following documentation to the CBP officer:

  • Proof of Canadian citizenship;
  • Letter from your prospective employer detailing items such as the professional capacity in which you will work in the United States, the purpose of your employment, your length of stay, and your educational qualifications; and
  • Credentials evaluation (if applicable), together with any applicable fees.

3. A prospective TN employer may also choose to file on behalf of a Canadian citizen who is outside the U.S. by submitting Form I-129, Petition for Nonimmigrant Worker to USCIS. If Form I-129 is approved, the prospective worker may apply to CBP for admission to the U.S. as a TN nonimmigrant by providing the following documentation to a CBP Officer at certain CBP-designated U.S. ports of entry or at a designated pre-clearance/pre-flight inspection station:

  • Proof of Canadian citizenship; and
  • Approval Notice from USCIS for Form I-129.

The Filing Process (for Mexican Citizens)

1. Mexican citizens are required to obtain a visa to enter the U.S as a TN nonimmigrant. The Mexican citizen should apply for a TN visa directly at a U.S. embassy or consulate in Mexico.

2. Once the TN visa is approved, you may apply for admission at a certain CBP-designated U.S. port of entry or at a designated pre-clearance/pre-flight inspection station. CBP’s website provides additional information and requirements for applying for admission to the U.S.

Period of Stay/Extension of Stay

The initial period of stay is up to 3 years.
The visa holder may extend the initial period of stay without first departing from the U.S. by seeking an extension of stay. The employer may file Form I-129 on the visa holder’s behalf. Alternatively, the visa holder should depart from the U.S. before the expiry of the status, and then apply at a CBP-designated U.S. port of entry or at a designated pre-clearance/pre-flight inspection station using the same application and documentation procedures required at the time of the initial application for admission as a TN nonimmigrant.

E-2

The E-2 nonimmigrant classification allows a national of a treaty country to be admitted to the U.S. when investing a substantial amount of capital in a U.S. business. Certain employees of such a person or of a qualifying organization (and their spouses and children) may also be eligible for E-2. Such employees should come to engage in duties of an executive or supervisory character, or, if employed in a lesser position, have special qualifications that make their services essential to the operation of the enterprise. E-2 spouses are eligible to apply for employment authorization. Their nationalities need not be the same as the treaty investor or employee.

Requirements for Treaty Investors

Who is Eligible to Apply for E-2

  • The treaty investor must be a national of a treaty country;
  • The treaty investor has invested, or be actively in the process of investing, a substantial amount of capital in a bona fide enterprise in the U.S.; and
  • The treaty investor is seeking to enter the U.S. solely to develop and direct the investment enterprise. This is established by showing at least 50% ownership of the enterprise or possession of operational control through a managerial position or other corporate device.

A “treaty country” is a country with which the U.S. maintains a treaty of commerce and navigation, or with which the U.S. maintains a qualifying international agreement, or which has been deemed a qualifying country by legislation.

“Investment” is the treaty investor’s placing of capital, including funds and/or other assets, at risk in the commercial sense with the objective of generating a profit. The capital must be subject to partial or total loss if the investment fails. The treaty investor must show that the funds have not been obtained, directly or indirectly, from criminal activity.

“A substantial amount of capital”

  • Substantial in relationship to the total cost of either purchasing an established enterprise or establishing a new one
  • Sufficient to ensure the treaty investor’s financial commitment to the successful operation of the enterprise
  • Of a magnitude to support the likelihood that the treaty investor will successfully develop and direct the enterprise. The lower the cost of the enterprise, the higher, proportionately, the investment must be to be considered substantial.

A “bona fide enterprise” is a real, active, and operating commercial or entrepreneurial undertaking which produces services or goods for profit. It must meet applicable legal requirements for doing business within its jurisdiction. The investment enterprise may not be marginal.

Requirements for the Employee of A Treaty Investor

  • Be the same nationality of the principal alien employer who must have the nationality of the treaty country;
  • Meet the definition of “employee” under relevant law; has invested, or be actively in the process of investing, a substantial amount of capital in a bona fide enterprise in the U.S.; and
  • Either be engaging in duties of an executive or supervisory character or if employed in a lesser capacity, have special qualifications.

“Principal alien employer”: If it is not an individual, it must be an enterprise or organization at least 50% owned by persons in the U.S. who have the nationality of the treaty country. These owners must either (a) be maintaining nonimmigrant treaty investor status or (b) if the owners are not in the U.S., they must be, if they were to seek admission to the U.S., classifiable as nonimmigrant treaty investors.

“Duties of an executive or supervisory character”: Those which primarily provide the employee ultimate control and responsibility for the enterprise’s overall operation or a major component of it.

“Special qualifications”: Skills and/or aptitudes that make the employee’s services essential to the efficient operation of the treaty enterprise.

The qualities or circumstances may include:

  • The degree of proven expertise in the employee’s area of operations
  • Whether others possess the employee’s specific skills
  • The salary that the special qualification can command
  • Whether the skills and qualifications are readily available in the U.S.

Filing Process of E-2

  • Within the U.S.: The treaty investor may file Form I-129 to request a change of status to E-2 classification. The qualifying employer may file Form I-129 to request a change of status to E-2 classification for the employee who is in the U.S.
  • Outside the U.S.: File the Form DS-160, Nonimmigrant Visa Application. Before entering the U.S., treaty investors and their nonimmigrant employees must apply for and receive an E-2 visa from a U.S. Consulate or Embassy overseas and subsequently be admitted to the U.S. by CBP.

O-1

The O-1 nonimmigrant visa is for the individual who possesses extraordinary ability in the science, 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.

Two Visa Classifications Under the O-1 Classification
  • 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 (Arts) or extraordinary achievement in the motion picture or television industry (MPTV).
  • Requirements for the O-1 beneficiary (Who is Eligible for the O-1 Classification)
  • Demonstrate extraordinary ability by sustained national or international acclaim.
  • Has a record of extraordinary achievement in the motion picture and television industry.
  • Is coming temporarily to the U.S. to continue work in the area of extraordinary ability.
  • Submits evidentiary documents of receipt of (or in some categories nomination for) a qualifying award, or at least three alternate forms of evidence.
  • “Extraordinary ability”
  • In the fields of science, education, business, or athletics – means level expertise indicating that you are one of the small percentages who have arisen to the very top of the field.
  • In the field of arts – means distinction. “Distinction” means a high level of achievement in the field of the arts. Prominent, renowned, leading, or well-known in the fields of arts.
  • In the motion picture or television industry – an extraordinary achievement. Outstanding, notable, or leading in the motion picture and/or television field.
  • Requirements for the O-1 Petitioners
  • A U.S. employer may file a Form I-129. A U.S. agent may also file such a petition when it involves workers who are traditionally self-employed or workers who use agents to arrange short-term employment on their behalf with numerous employers.
  • A U.S. agent may be the actual employer of the beneficiary, the representative of both the employer and the beneficiary, or a person or entity authorized by the employer to act for, or in place of, the employer as its agent.
  • If the O-1 beneficiary whose employment terminates for reasons other than voluntary resignation, the employer whose offer of employment formed the basis of such nonimmigrant status and the petitioner (if different from the employer) are jointly and severally liable for the reasonable cost of return transportation of the beneficiary to his or her last place of residence prior to his or her entry into the U.S.
  • Supporting Documentation (O-1A)

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

    • Documentation of the beneficiary’s receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor;
    • Documentation of the beneficiary’s membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields;
    • Published material in professional or major trade publications or major media about the beneficiary, relating to the beneficiary’s work in the field for which classification is sought, which must include the title, date, and author of such published material, and any necessary translation;
    • Evidence of the beneficiary’s participation on a panel, or individually, as a judge of the work of others in the same or in an allied field of specialization for which classification is sought;
    • Evidence of the beneficiary’s original scientific, scholarly, or business-related contributions of major significance in the field;
    • Evidence of the beneficiary’s authorship of scholarly articles in the field, in professional journals, or other major media;
    • Evidence that the beneficiary has been employed in a critical or essential capacity for organizations and establishments that have a distinguished reputation; or
    • Evidence that the beneficiary has either commanded a high salary or will command a high salary or other remuneration for services, as evidenced by contracts or other reliable evidence.

    If the listed criteria are not readily applicable to the beneficiary’s occupation, the petitioner may submit comparable evidence to establish the beneficiary’s eligibility. The petitioner must explain why a particular evidentiary criterion is not readily applicable to the beneficiary’s occupation, and why the submitted evidence is “comparable” to that criterion.

    Supporting Documentation (O-1B Arts)

    Evidence that the beneficiary has received, or been nominated for, a significant national or international award in the particular field (such as an Academy Award, Emmy, Grammy, or Director’s Guild Award) or at least 3 of the following forms of evidence:

    • Evidence that the beneficiary has performed, and will perform, services as a lead or starring participant in productions or events that have a distinguished reputation, as evidenced by critical reviews, advertisements, publicity releases, publications, contracts, or endorsements;
    • Evidence that the beneficiary has achieved national or international recognition for achievements, as evidenced by critical reviews or other published materials by or about the beneficiary in major newspapers, trade journals, magazines, or other publications;
    • Evidence that the beneficiary has 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;
    • Evidence that the beneficiary has a record of major commercial or critically acclaimed successes, as evidenced by such indicators as title, rating, standing in the field, box office receipts, motion pictures or television ratings, and other occupational achievements reported in trade journals, major newspapers, or other publications;
    • Evidence that the beneficiary has received significant recognition for achievements from organizations, critics, government agencies, or other recognized experts in the field in which the beneficiary is engaged. Such testimonials must be in a form that clearly indicates the author’s authority, expertise, and knowledge of the beneficiary’s achievements; or
    • Evidence that the beneficiary has either commanded a high salary or will command a high salary or other substantial remuneration for services in relation to others in the field, as evidenced by contracts or other reliable evidence.

    The petitioner may submit comparable evidence to establish the beneficiary’s eligibility if these criteria are not readily applicable to the beneficiary’s occupation.

    The Filing Process of O-1 Visas

    • An O-1 beneficiary may not petition for himself or herself. A U.S. employer, U.S. agent, or foreign employer through a U.S. agent should file Form I-129, Petition for Nonimmigrant Worker, on the beneficiary’s behalf, along with the required evidence according to the form instructions. The petitioner cannot file the petition more than one year before they need the beneficiary’s services.
    • The petitioner must provide a written advisory opinion from a peer group (including labor organizations) or a person with expertise in the beneficiary’s area of ability. For motion pictures or television, the consultation just comes from an appropriate labor union and a management organization with expertise in the beneficiary’s area of ability. If Petitioner can demonstrate that an appropriate peer group, including a labor organization, does not exist, the USCIS will base their decision on the evidence the Petitioner submit in support of Form I-129.
    • The petitioner must submit a copy of a written contract between the beneficiary and the petitioner or a summary of the terms of the oral agreement under which the beneficiary will be employed.
    • The petitioner must provide an explanation of the nature of the events or activities, the beginning and ending dates for the events or activities, and a copy of an itinerary for the events or activities, if applicable.

    L-1A/L-1B

    L-1A and L-1B visas are available for temporary intracompany transferees who work in managerial positions or have specialized knowledge.

    L-1A

    Available for intracompany transferees who work in managerial or executive positions in a company that is located outside the U.S. This classification also enables a foreign company that does not yet have an affiliated U.S. office to send an executive or manager to the U.S. with the purpose of establishing one.

    Requirements for L-1A Applicants

    • Generally have been working for a qualifying organization abroad for one continuous year within the three years immediately before your admissions to the U.S.; and
    • Be seeking to enter the U.S. to provide service in an executive or managerial capacity for a branch of the same employer or one of its qualifying organizations.

    “Executive capacity”: A person’s ability to make a wide range of divisions without much oversight.

    “Managerial capacity”: A person’s ability to supervise and control the work of professional employees and to manage the organization, or a department, subdivision, function, or component of the organization. Or, a person’s ability to manage an essential function of the organization at a high level, without direct supervision of others.

    L-1B

    Available for intracompany transferees who work in positions requiring specialized knowledge relating to the organization’s interests from one of its affiliated foreign offices to one of its offices in the U.S. This classification also enables a foreign company that does not yet have an affiliated U.S. office to send s specialized knowledge employee to the U.S. to help establish one.

    Requirements for the L-1B Applicants

    • Generally have been working for a qualifying organization abroad for one continuous year within the three years immediately before your admission to the U.S.; and
    • Be seeking to enter the U.S. to provide services in a specialized knowledge capacity to a branch of the same employer or one of its qualifying organizations.

    “Specialized knowledge”: Knowledge you have about the petitioning organization’s product, service, research, equipment, techniques, management, or other interests and its application in international markets, or an advanced level of knowledge or expertise in the organization’s processes and procedures.

    Requirements of Establishing New Offices

    Foreign employers seeking to send an employee to the United States as an executive or manager to establish a new office must show:

    • They have a physical location for the new office;
    • The employee has been employed as an executive as an executive or manager for one continuous year in the three years before filing the petition;
    • The new office will support an executive or managerial position within one year of the approval of the petition.

    The Filing Process of L-1A/L-1B Visas

    The employer must:

    • Review the instructions for Form I-129, Petition for a Nonimmigrant Worker;
    • Complete and sign Form I-129;
    • Pay the filing fee, if applicable; and
    • Provide all required evidence and supporting documentation, including a duplicate copy of your Form I-129 and all supporting documentation, even if they are dining the Form I-129 to seek a change of status (COS) or extension of stay (EOS) on your behalf.

    Blanket Petitions

    A blanket L petition provides the employer with the flexibility to transfer eligible employees to the U.S. quickly and with short notice without having to file an individual petition with USCIS.

    The California Service Center and the CBP Blaine, Washington, port of entry are participating in a joint agency pilot program for Canadian citizens seeking L-1 nonimmigrant status under NAFTA.

    Period of Stay

    Qualified employees who will establish a new office will be allowed a maximum initial stay of 1 year. All other qualified employees will be allowed a maximum initial stay of 3 years. The extension may be granted in increments of up to 2 years until it reaches the maximum limit of 7 years.

    Have questions about Alternative Non-Immigrant Visas? Contact Springdale Law Firm.