Canadian citizens currently enjoy a significant advantage when it comes to work visa options in the United States. Not only are they eligible for a category which is only made available through the North American Free Trade Agreement (soon to be the United States – Mexico – Canada Agreement), they are also the only foreign nationals who have the ability to request work authorization directly at a U.S. Customs and Border Protection Port of Entry.

In fact, Canadian citizens have two options when it comes to Port of Entry work authorization requests: (1) TN status, for professional occupations listed in NAFTA / USMCA; or (2) L-1 status, for intracompany transfers of managerial or specialized knowledge employees (initial or intermittent traveler petitions only).

When Canadian citizens apply for L-1 or TN status at a Port of Entry, a U.S. Customs and Border Protection officer will serve as the adjudicator of their petition, by reviewing the documentary evidence, conducting an interview with the applicant, and making a final decision.

In practice, when it comes to applying with U.S. Customs and Border Protection, not all port of entries are the same. Immigration petitions inherently involve subjective interpretation of government regulations. For example, in the context of an L-1B petition, what exactly is “specialized knowledge”? Or another example, in the context of a TN petition, what types of bachelor’s degrees are relevant to the professional occupation of a Computer Systems Analyst?

Given that two different Port of Entries may have different adjudication standards or different policies in place, which can impact whether the petition is approved or denied, it is critical that employers work with a licensed attorney in identifying the optimal Port of Entry for their Canadian citizen employee or new hire.

If the wrong Port of Entry is selected from the outset, it may not only lead to refusal of the initial petition but may also make it difficult for the employee to later choose a different Port for submission of the petition. Canadian citizens who are rejected at one Port, and subsequently apply at another, are often refused entry the second time for a reason known as “Port Shopping”. In some “Port Shopping” cases, the employee may even be banned from returning to the U.S. for a period of five years.

In summary, Canadian citizens are in an ideal position when it comes to requesting work authorization to begin or continue their careers in the U.S. Such individuals are encouraged to consult an attorney to ensure they not only have all of the required documents, but also choose the optimal port of entry for submission of their petition.

Foreign nationals who immigrate to the United States often endure long processing times and sometimes overcome tricky issues prior to receiving what they covet, U.S. Permanent Residence. This status is formalized when the individual receives their Green Card, a document evidencing their Lawful Permanent Resident status in the United States.

As can happen in life, the individual’s circumstances may change after they receive their Green Card. For example, let’s assume the individual is offered an employment opportunity in Europe pursuant to a two-year contract with the prospective employer. The individual wishes to pursue this opportunity, as it will help advance their career and allow them to experience a new culture. But the individual ultimately wishes to return to the United States, which they view as their permanent home.

In this scenario, the individual should consider two options with the advice of an immigration lawyer. The first would be a Form I-131 Re-entry permit. A re-entry permit establishes that you did not intend to abandon your Green Card, and it allows you to apply for admission to the United States after traveling abroad for up to 2 years, returning as a permanent resident. As a note, individuals who continuously reside outside of the U.S. for a period of 1 year or more, without a re-entry permit, are deemed to have voluntarily abandoned their green card.

A second option to consider would be a Form N-400, Application for Naturalization. The availability of this option would depend on how long the individual has resided in the U.S. as a permanent resident, and whether they can remain a permanent resident while the application is in process. If successful, the individual would become a citizen of the United States. Unlike permanent residents, U.S. citizens will not be deemed to have abandoned their status, regardless of how many years they have been absent from the country.

Finally, in the case of a permanent resident departing the U.S. who has no intent to return to the country, it may be advisable to file Form I-407, Record of Abandonment of Lawful Permanent Resident Status. This action is irreversible but would potentially be a necessary move in certain cases depending on the individual’s potential U.S. tax liabilities. For further information in this area, see: IRS Green Card Test guidance.

Thus, if you have a green card and are planning to depart the United States for an extended period, it is highly advisable to speak with an immigration lawyer prior to your departure to understand all of your options.

Former INA 350 provided for loss of nationality by a dual national from birth (a person who acquired U.S. and foreign nationality by birth), in a limited context. In addition to being a dual national from birth, the individual must have continuously resided in the foreign state for at least 3 years after attaining the age of 22, and must also have sought a benefit from the foreign state (e.g. passport, health care, etc.).

Former INA 350 was repealed on October 10, 1978, by Public Law 95-432. However, the report of the House Committee on the Judiciary affirmed that the repeal of the law was prospective. Hence, an individual can still claim loss of U.S. Citizenship if they satisfied all required statutory elements under Former INA 350 prior to October 10, 1978. Whereas, individuals cannot claim that they lost U.S. Citizenship under INA 350 if they failed to satisfy all elements of INA 350 prior to October 10, 1978.

If a Loss of Nationality claim under Former INA 350 is accepted by the State Department, the individual should receive a Certificate of Loss of Nationality which confirms that U.S. citizenship status was lost retroactively, to the date when all three criteria noted above were met. In other words, the Certificate of Loss of Nationality would confirm that the individual lost U.S. citizenship on a specified date prior to October 10, 1978.

Although the process of obtaining a retroactive Certificate of Loss of Nationality may be more complicated than a relatively straightforward renunciation, the implications in the tax world could be significant. For any individual who believes they qualify for Loss of Nationality under Former INA 350, we recommend speaking with an immigration attorney first for assessment, followed by a consultation with your trusted accountant.

In general, an I-130 petition filed by a U.S. citizen for their foreign spouse must first be filed with United States Citizenship and Immigration Services (“USCIS”). Once the I-130 petition has been approved by USCIS, the foreign spouse may apply for their immigrant visa at the U.S. Consulate in their country of residence abroad.

The problem with this approach is that processing time is currently in the range of 10 – 12 months. Which is a long period for a married couple to be separated, especially if they had been living together abroad.

In certain cases, the U.S. citizen may be eligible to request expedited processing through the U.S. Consulate in their home country. This is a process known as “Direct Consular Filing”. In cases where the expedite request is accepted, the I-130 will be processed directly with the U.S. Consulate from start to finish. In other words, the U.S. citizen would not file the I-130 petition with USCIS.

The Direct Consular Filing process can drastically reduce the overall processing time. In some cases, the total time required has been 2 – 4 months from start to finish, a significant time saver compared with the standard I-130 filed with USCIS.

Attempting to file the I-130 petition directly with the U.S. Consulate is a complicated process, and it is advisable to speak with an attorney if you are interested in pursuing this option for your family members.

A person born in the U.S. or if born abroad, or who naturalizes as a U.S. citizen or otherwise obtains U.S. citizenship derivatively through a U.S. parent or parents, remains a U.S. citizen until she commits an expatriating act as defined under the applicable statute. A person must commit an expatriating act voluntarily and with the intention to expatriate.  The U.S. citizen will be considered a U.S. citizen by the U.S. government until the U.S. citizen obtains a Certificate of Loss of Nationality from the U.S. Department of State. The particular fact pattern of how the U.S. citizen acquired and subsequently claims to have lost their citizenship will determine if the U.S. citizen can either formally renounce or voluntarily relinquish their U.S. citizenship. Only the U.S. State Department can make a determination as to whether a person has lost their U.S. citizenship.

Loss of U.S. Nationality

Certain seminal U.S. Supreme Court cases commencing in the 1980s and INA § 349(a) of the current Immigration and Nationality Act (“INA”) provides that U.S. nationality is lost only when the U.S. citizen performs one or more of the enumerated statutory acts and acts with the intent to voluntarily relinquish or formally renounce her U.S. citizenship.

The cessation of U.S. citizenship without voluntary action on the part of the citizen will deprive the citizen of freedom of choice and would likely be a denial of due process. This requirement was made explicit by a 1986 amendment to INA § 349(a) (Immigration and Nationality Act Amendments of 1986, Pub. L. No. 99-653, §18, 100 Stat. 3655).

The Immigration and Nationality Act Amendments of 1986, Pub. L. No. 99-653, §18, 100 Stat. 3655, legislated that the acts of expatriation listed in the statute would terminate citizenship only if voluntarily performed “with the intention of relinquishing United States nationality.” The Immigration Technical Corrections Act of 1988, Pub. L. No. 100-25, §8(r), 102 Stat. 2609, 2618 provided that the 1986 amendment “shall apply to actions taken before, on, or after November 14, 1986.”

Acquisition of foreign nationality at birth will not result in expatriation unless at a later point in time, an act performed by the U.S. citizen meets the requirements under the applicable statute.

Two expatriating acts contained in INA §349 are relevant to the issue of dual nationality. They are:

1. Obtaining naturalization in a foreign state upon the citizen’s own application or upon an application filed by a duly authorized agent, after having attained the age of eighteen years; and

2. Taking an oath or making an affirmation or other formal declaration of allegiance to a foreign state or a political subdivision thereof after having attained the age of eighteen years.

The U.S. citizen must perform an expatriating act voluntarily and also intend to relinquish U.S. citizenship as a result of such voluntary act.

Pursuant to INA §349(b), whenever the loss of U.S. nationality is put in issue, the burden falls upon the person or party claiming that such loss occurred, to establish such claim by a preponderance of the evidence.

In September 1990, the Department of State (“DOS”) issued a policy statement which addressed with loss of nationality. The policy statement indicated that DOS would presume a person intended to retain U.S. citizenship where:

1. The person was naturalized in a foreign country
2. Took a routine oath of allegiance, or
3. Accepted non-policy level employment with a foreign government.

A decision to seek expatriation of U.S. citizenship must not be taken lightly. The actions must be considered in light of tax and cross-border travel implications. Ronald A. Zisman has successfully represented many renunciants throughout the world in navigating the administrative and legal process involved.

Link to full list of positions covered by NAFTA

Accountant+
Architect+
Astronomer
Biochemist
Biologist
Chemist
Computer Systems Analyst*
Dentist+
Economist
Engineer
Epidemiologist
Geneticist
Geochemist
Geographer (see Urban Planner)
Geologist
Geophysicist
Graphic Designer*
Hotel Manager*
Industrial Designer*
Interior Designer*
Land Surveyor+
Landscaping Architect
Lawyer+
Librarian
Management Consultant‡
Mathematician
Medical Technologist*
Meteorologist
Nutritionist
Occupational Therapist+
Oceanographer (see Geophysicist)
Pharmacist+
Pharmacologist
Physician+
Physicist
Physiotherapist/Physical Therapist+
Psychologist (state license required)
Recreational Therapist
Registered Nurse (state license required)
Research Assistant (working in college or university)
Social Worker
Statistician (see Mathematician)
Teacher (college, university, or seminary teachers only)
Scientific Technician/Technologist‡
Urban Planner (see also Geographer)
Veterinarian+
Vocational Counselor
Technical Publications Writer

 

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+ A state or provincial license may qualify the candidate in lieu of a baccalaureate degree.

à Applicants with appropriate work experience or acquired knowledge may qualify for this category without any academic or vocational degree. However, special restrictions attach to these categories.

* Applicants possessing a postsecondary diploma (i.e., a 2-year college degree), and 3 years of relevant work experience, may qualify without possessing a baccalaureate degree. Please contact  Ronald A. Zisman (raz@crossbordervisas.com) to further evaluate your case.

The TN-1 (TN) nonimmigrant classification was created by the 1992 North American Free Trade Agreement (“NAFTA”), and applies exclusively to Canadian citizens temporarily entering the United States to engage in business activities at a professional level.

The TN category is available only to Canadian citizens who seek employment in the U.S. under certain pre-designated professions. A list of commonly used TN visa categories can be viewed by clicking here:

List of TN Qualified Professions

The beneficiary can apply either  upon departure from Canada at any Class A Port of Entry or by first filing a nonimmigrant petition with the appropriate USCIS Service Center.

The TN can be issued for up to 3 years at a time and renewed indefinitely subject to the beneficiary continuing to maintain nonimmigrant intent and also meeting the specific requirements of her TN status.  Unlike the H-1B category, there are no yearly caps.

There are important considerations to be aware of when obtaining a TN status:

Spouses are issued TD status but do not have the legal right to obtain work authorization unless they can independently qualify under the TN or other category.

Most (though by no means all) TN-1 categories require a baccalaureate degree as the qualifying academic credential. A few categories require an advanced degree (e.g., Librarian).

 

E Visas are nonimmigrant visas. They can be issued for a period of five years and can be renewed indefinitely so long as the underlying facts continue to support the requirements for the Visa.

(1) A Treaty of Friendship, Commerce and Navigation or Bilateral Investment Treaty between the U.S. and the country of which the company and the applicant is a national.

The NAFTA agreement covers Canadian citizens. For landed immigrants of Canada, there must be a similar treaty between the U.S. and the applicant’s country of nationality.

(2) The individual and/or business possess the nationality of the treaty country.

For Canadian citizens, a copy of the passport, birth certificate, or citizen card is sufficient proof. For landed immigrants or in other signatory countries, the equivalent document from their country of nationality and their landed immigrant papers will suffice.

(3) The activities constitute trade within the meaning of INA 101(a)(15)(E).

Trade, in this sense, must satisfy the following three requirements:

• Trade must constitute an exchange
• Trade must be international
• Trade must be in existence

The purpose of the E-1 Visa is to promote trade between the U.S. and Canada or U.S. and the signatory country.

(4) Such trade is substantial.

“Substantial” describes the flow of goods or services between the U.S. and Canada (or the relevant Treaty Country) and involves weighing both the applicant’s volume of trade and the number of transactions. The best example of “substantial” trade is a large number of high-valued transactions. The best example of trade that isn’t “substantial” is a small number of low-valued transactions.

(5) Trade is principally between the U.S. and the treaty country.

At least 50 percent of the applicant’s international trade (Note: not total trade) must be between the U.S. and Canada or the U.S. and the signatory country.

(6) The applicant, if an employee, is destined to an executive/supervisory position or possesses skills essential to the firm’s operations in the U.S.

An executive or supervisory position is one, which entails a high degree of responsibility for the firm’s overall operations, and the executive or supervisory element is the primary function of the job.

An essential employee is one without which the applicant would not be able to do business in the U.S. The burden of proof clearly lies with the applicant to prove that the prospective employee is essential.

(7) The applicant intends to depart the United States when the E status terminates.

E Visas are nonimmigrant visas. They can be issued for a period of up to five years and can be renewed indefinitely so long as the underlying facts continue to support the requirements for the Visa.

(1) A Treaty of Friendship, Commerce and Navigation or Bilateral Investment Treaty between the U.S. and the country of which the company and the applicant is a national.

The NAFA agreement covers Canadian citizens. For landed immigrants of Canada, there must be a similar treaty between the U.S. and the applicant’s country of nationality.

(2) The individual and/or business possess the nationality of the treaty country.

For Canadian citizens, a copy of the passport, birth certificate, or citizen card is sufficient proof. For landed immigrants or in other signatory countries, the equivalent document from their country of nationality and their landed immigrant papers will suffice.

(3) Applicant has invested, or is actively in the process of investing within the meaning of INA 101(a)(15)(E).

Key factors in determining whether the applicant has invested, or is in the process of investing are:

• Possession and control of the assets invested. The applicant needs to show that the assets or funds invested are in his/her name and they have control over them. (Note: An inherited business is not an investment.).

• The investment must be “at-risk”. To be “at-risk” the investment funds must be subject to loss if the business fails. Indebtedness secured by the assets of the business is not considered “at-risk” in this sense. “At-risk” funds include only funds in which personal assets are involved.

• Funds must be irrevocably committed. Examples of irrevocably committed funds are funds held in escrow pending issuance of the visa and funds already paid for the purchase of the business. Examples of funds that are not irrevocably committed are uncommitted funds in a bank account and prospective investment arrangements involving no present commitment. To satisfy this requirement the applicant must provide documents that indicate that the applicant has already committed these funds to the business and that these funds are under his/her control.

• The investor must document the source of these funds (i.e. loan, sale of assets, bank account, etc.).

(4) Enterprise is a real and operating commercial enterprise.

Speculative investments held for potential appreciation in value do not qualify. Non-profit organizations also do not qualify.

(5) Applicant’s investment is substantial.

The determination whether an investment is substantial consists of the following:

• Applying the proportionality test – The proportionality test is a comparison of the total cost (the purchase price of an existing business or the cost of making a newly created business operational) of the enterprise and the amount of qualifying funds invested. The lower the cost of the business, the higher the percentage of qualifying funds invested needed to qualify. Determining whether the funds are sufficient to ensure the investor’s commitment to the successful operation of the enterprise and to its development and direction.

(6) The Investment is more than a marginal one solely for earning a living.

The applicant can show that an investment is more than marginal in one of two ways.

• First, submit documents showing that the income derived from the investment exceeds what is necessary to support self and family. Income tax forms from the business and/or income statements prepared by the accountant are welcomed.

• Failing this test, the applicant can show that the investment has the capacity, present or future, to make a significant economic contribution to the community. In this vein, submit documents that show the number of workers the business will employ, now and in the future.

(7) Applicant is coming to the U.S. to “develop and direct” the enterprise.

(8) The applicant, if an employee, is destined to an executive/ supervisory position or possesses skills essential to the firm’s operations in the U.S.

An executive or supervisory position is one, which entails a high degree of responsibility for the firm’s overall operations, and the executive or supervisory element is the primary function of the job.

An essential employee is one without which the applicant would not be able to do business in the U.S. The burden of proof clearly lies with the applicant to prove that the prospective employee is essential.

To bring an employee into the U.S., the applicant must meet the following criteria:

• The prospective employer must meet the nationality requirements as described in number 2 above;

• The employer and employee must have the same nationality; and

•The employer, if not resident abroad, must be maintaining E status in the U.S.

(9) The applicant intends to depart the United States when the E status terminates.

Classification	Characterization of Group
A-1, A-2, A-3	Staff of foreign embassies & consulates and members of the immediate family. Clearance for any work beyond diplomatic work must be given in advance by the Protocol Division of the Department of State.
B-1	Visitors for business. May be paid an honorarium and/or reimbursement for incidental expenses.
B-2	Visitors for pleasure. May be paid an honorarium and/or reimbursement for incidental expenses.
B-2 Prospective Student	Alien with clear intent to study in the U.S.will change to F1 status. See B-1 eligibility re. change to F-1.
B-2 Prospective Exchange Visitor	Alien with clear intent to change to J-1 status for study, research, or teaching. See B-1 eligibility re. changes to J-1.
C-1	Visitors in transit. May receive no payment whatsoever from any U.S. source.
D-1	Foreign crewmen. May be paid only for work done in connection with shipping/transport.
E-1	Treaty traders and their dependents. May be paid for business and investing work used as justification for issuance of visa; no other work is legally permitted.
E-2	Treaty investors, and their dependents. May be paid for business and investing work used as justification for issuance of visa; no other work is leagally permitted.
F-1	Foreign students. On-campus work permit given by Foreign Student Adviser (on special form); off-campus work possible; approval shown on I-20 ID (yellow form).
F-2	Dependents of foreign students. May receive no payment whatsoever from any U.S. source.
G-1, G-2, G-3, G-4	Employees of International organizations and members of their immediate familly. May be paid only by the organization for which they received their G designation; no other work legally permitted. G-4 spouses and dependents may apply for special work permit on Form I-556 to Department of State.
H-1B	Temporary professional workers. May be paid any sum by the employer that filed H-1 petition for period of validity of that petition.
H-2A	Temporary workers whose skills are needed in the U.S. May be paid any sum by the employer that filed H-2 petition for period of validity of that petition.
H-3	Trainees (as distinct from F-1 practical trainees). May be paid any sum by the employer that filed H-3 petition for period of validity of that petition.
H-4	Dependents of H-1, H-2, H-3 employees. May receive no payment whatsoever from any U.S. source.
I-1	Journalists, representatives of media, and their dependents. May work only for the media organization that obtained I visa for them.
J-1 Student	Student in the U.S. under Exchange Visitor Program. May work on- or off-campus if granted permission (on special form) by Exchange Visitor Program sponsor.
J-1 Scholar	Researchers/professors under Exchange Visitor Program. May work for university or organization that issued IAP-66 (visa entry form); permission for other work granted by U.S. Information Agency (contact Foreign Student and Scholar Services)
J-2	Dependents of J-1’s. May request work authorization from INS if J-2 can state that money needed for his/her expenses; permit shown on I-94
K-1	Fiance(e)s of American citizens. May request work authorization upon entry to U.S.; shown on I-94.
K-3	Spouses of U.S. Citizens who are beneficiaries of Immigrant Visa Petitions. Will be admissable while Immigrant Visa Petition is pending. Must marry American citizen within 90 days and apply for permanent residence.
L-1	Intra-company transfers, i.e., managers, executives who have worked abroad for branch of U.S. firm. May work only for the company that obtained L-1 visa on their behalf; no other work permitted.
L-2	Dependents of L-1’s. May receive no payment whatsoever from any U.S. source.
M-1	Students at vocational schools. May receive permission to work for six months after completion of studies; shown on I-20 ID.
M-2	Dependents of M-1’s. May receive no payment whatsoever from any U.S. source.
N-8, N-9	Parent or dependent child of individual who has been granted Permanent Residency under special case. Can be employed with EAD.
NATO	Alien from a NATO member country in the U.S. under sponsorship of NATO, for study, research or training. Funds limited to NATO
O-1	Alien of extraordinary ability in arts, business, etc. May only receive payment from the employer who received approval for the visa.
O-2	Alien with critical skills and experience accompanying O alien. May only receive payment from the employer who received approval for the visa.
O-3	Dependents of O-1’s and O-2’s. May receive no payment whatsoever from any U.S. source.
P-1	Alien athlete internationally recognized. May only receive payment from the employer who received approval for the visa.
P-2	Alien artists or entertainers, individual or group. May only receive payment from the employer who received approval for the visa.
P-3	Alien providing essential support to the P-1 and P-2 visa holders. May only receive payment from the employer who received approval for the visa.
P-4	Dependents of P-1’s, P-2’s, and P-3’s. May receive no payment whatsoever from any U.S. source.
R-1	Religious exchange. May only be paid by the sponsor of the visa.
R-2	Dependent of R-1. May receive no payment whatsoever from any U.S. source.
S-1	Criminal Witness. May only be paid by the sponsor of the visa.
TN	Individual from Mexico or Canada-NAFTA. May be employed until the date on the I-94
TD	Dependent of TN. May receive no payment whatsoever from any U.S. source.
V	Spouses and children of Lawful Permanent Residents who have filed an I-130 Petition prior to Dec. 21, 2000 and is pending 3+ years.
WB(business)	Visa waiver program. Can enter the U.S. for 90 days without a visa; See B-1.
WT(tourist)	Visa waiver program. See B-1.
Asylum Applicants (I-589 filed)	Aliens who have filed for asylum in the U.S. May request work authorization from INS during the waiting period shown on I-94 or special form.
Asylees, Refugees	Aliens who have been granted asylum or refugee status in the U.S. No limits at all on the employment they may legally hold in the U.S.
U.S. Pending Immigrants	Aliens who have filed for adjustment to Immigrant status in the U.S. May request work authorization from INS during brief waiting period (3-4 months); would show on I-181 or special form.
Immigrants (Permanent Residents)	Resident aliens who have been granted permanent residence in the U.S.; may stay forever in this status. No limits at all on the employment they may legally hold; will be able to show Resident Alien Card(I-151 or I-551).
Temporary Residents	Those who have been approved for legalization in the U.S. after having been here in illegal status for five years or more. May request work authorization for the year (or longer) it will take to obtain permanent residency; will be able to show I-688 or I-688A (Temporary Resident Employment Authorization Card).
Conditional Permanent Residents	Aliens who have applied for immigrant status through marriage to an American citizen or Permanent Resident of the U.S. No limits at all on the employment they may legally hold; will be able to show work authorization from INS
Undocumented Aliens	Aliens who entered the U.S. illegally or who lost legal status and are not eligible for legalization. Not eligible for any work in the U.S.; Employer not liable to any punishment if these aliens have been employed for same employer since before November 7, 1986.