These days, your Canadian clients looking for greener pastures
south of the border are faced with increasing regulatory hurdles. The chatter
about increased restrictions imposed on Canadians merely wishing to visit the
US is growing louder. It appears that, in the not so distant future, Canadians
will be required to have passports to merely visit the US-the same will be true
for our American counterparts coming to our shores.
The travel and tourism
industries on both sides of the border are naturally concerned. Many North
Americans do not have a passport and have enjoyed cross boarder travel for
years, relying on their photo IDs and birth certificates. Even showing a
passport these days may not be enough. Biometrics is now a reality. An
increasing number of travelers are subject to fingerprinting and iris scans.
All of these measures are of course justified in the name of border protection,
combating terrorism, national security, etc.
From a practitioner's preservative, these looming documentary and technological
barriers to entry translate to a need for more advocacy and creativity for
clients wishing to visit, work or live in the US. For our clients with US job
offers, the challenge has never been greater. For example, H-1B Visas (US work
permits for specialty occupations usually reserved for university degree
holders) have been severely capped from around 195,000 to a paltry 65,000
issued per year. This means that your educated clients who obtain job offers
later in the year will likely be out of luck and will have to wait until the
next processing cycle to obtain their visas.
Since 9/11, the trend in US immigration law, like here at home, has been towards
enforcement and greater restrictions across the board. However, there is one
area which, so far, has remained generally unscathed from this regulatory
trend: NAFTA.
If you are fortunate enough to have a client who qualifies for a US work permit
under NAFTA, by all means take it! For certain specialty workers with an
occupation and qualifications that appear at Appendix 1603.D.1 of the NAFTA
agreement, there is no better way to go than to apply for a
TN-1 Visa at the port of entry . A temporary offer of employment to a
maximum of one year, proof of education and/or experience as well as proof of
Canadian citizenship is all it takes. Of course nothing is ever as simple as it
seems and there is no substitute for qualified counsel who can assist with the
wording of that job offer letter and who understands the nuances of the various
ports of entry. However, when compared with the other options for work permits,
NATFA is a no-brainer. Take the L-1 Visa. L-1s are for intercompany transfers
wishing to work at a US subsidiary, affiliate or branch office. If you are
Canadian, NAFTA allows you to apply for the visa at a class A port of entry
rather than sweating it out at an internal US Service Center where you have to
wait months for a decision or pay a whopping $1,000USD for a 10 day turn
around. While the documentation required for an L-1 is more extensive than for
a TN, such applications are routinely processed at the port of entry in a
matter of minutes.
NAFTA's benefits are obvious but there are drawbacks. The doctrine of dual
intent does not apply to TNs and accordingly, they cannot be converted or
"adjusted" to Green Card applications like H-1Bs can. This means that your
clients wishing to make the US their permanent home, have to go though some
technical maneuvering with their employer usually involving further
applications to get a green card. NAFTA L-1 applications have also recently
been hit with a $500.00 fraud prevention fee that is now payable in addition to
the regular $190.00 processing fee. Further, there are ruminations in Congress
to impose caps on L-1s, but so far nothing has materialized. However with all
these annoyances, NAFTA is still the superior choice for
Canadians wishing to work in the USA.
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