U.S. and Canadian
Professional and Executive Immigration Law
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While both the
U.S. and Canada have their unique
requirements for professional or executive work visas, due to the NAFTA free
trade agreement many of the immigration visas of both countries are similar.Whether your goal is to work or
immigrate to the United States
or to Canada
this article will examine the most useful options available to you as a
professional or executive. |
Andy J. Semotiuk
US and Canadian
Immigration Lawyer
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The article reviews these options moving from the quickest, easiest and
cheapest through to the options that take the longest time, are the hardest to
take advantage of and cost the most. If you are in a hurry to move to the
United States
or Canada
you will first want to get a non-immigrant work visa and later apply for
permanent resident status. Indeed, in most employment-based or
business/investment-based applications for permanent residence this two-step
approach is best whether you are headed to the US
or Canada.
While this article is focused on business or executives in North America headed
south-bound or north-bound, much of what is presented remains the same for
professionals and executives from other parts of the world traveling to North America. To be certain of your status you should always consult an
immigration lawyer about your specific circumstances before traveling.
1. Quickest, Easiest and Cheapest Visas
If your intention is merely to “do business” in the United States or
Canada, that is to say, you do not plan to do any “hands-on” work, then your
first and best option is a business visitor visa. As a business visitor to the
U.S. or Canada you can attend meetings, sign contracts, inspect facilities,
review budgets and financial statements, attend conferences, participate as a
director in corporate board meetings, attend trade shows, make purchases of
goods and services, and travel freely throughout the country, usually for up to
six months without applying to any consulate but merely presenting your passport
at the border when traveling to the U.S. or Canada. While you can do all these
things, you cannot do “hands-on” work. So, for example, you cannot answer
phones, type letters, handle customer complaints, make retail sales, etc., like
an employee of a company would. For more details on these visas read our article
on How to Visit the United States or
Canada by clicking here. If
you need help with this kind of visa email us and we will get back to you.
2.Second Quickest, Easiest and Cheapest
Visas
If you are a professional or an executive and your profession is listed
in the NAFTA free trade agreement, so long as you have the credentials required
by the agreement for the profession involved, you can get an immediate one year
(renewable indefinitely in one year increments) work visa. The key to such visas
are a job offer from an employer seeking to hire you in the relevant occupation
as is evidenced by an originally signed letter to that effect, a copy of
your degree or other credentials satisfying the NAFTA requirements, a passport
proving citizenship in a NAFTA country and a payment of the relevant fee. For more details on these visas read
our article on
Canadian and Mexican NAFTA TN Professional Workers and our
checklist for TN visa application at US
port of entry. Keep in mind that the requirements for these visas are pretty
much the same whether you are headed to the United
States or Canada
so what is written about American TN visas basically applies for Canada and even for Mexico for that matter.If you email us, we will send
you more details about these visas.
3.Third Quickest, Easiest and Cheapest
Visas
If you are an executive or manager of a company that has a parent,
affiliate or branch office in the United States or Canada and you have worked
for your company for at least a year in the last three years, you are eligible
to get an inter-corporate transferee work visa to move from your home country to
that affiliated office to take a job as an executive or manager there. The key
here is that your home operation must be big enough that it will continue doing
business following your departure.
If your target entity is a new start up, you will likely only get an initial
visa for two years, otherwise you first visa will be a three year visa. It will be renewable for a further
three years up to seven years maximum. Fore more details about this visa see our article
The L-1 Intra-Corporate Transferee
Visa. Bear in mind that since these are under NAFTA the Canadian rules
are very similar to the American rules.
Also, these visas are ideal for applying for permanent resident status
since one can have the dual intent of going to work temporarily as an
inter-corporate transferee as well as the intent to stay permanently if one’s
application for permanent residence is approved.
This differs from the rules for previous work visas discussed. If you
email us we will send you more
details about these L-1 Inter-Corporate Transferee visas.
4.Fourth Quickest, Easiest and Cheapest
Visas
Although some immigration attorneys will argue with me on this, my view
is the NAFTA investor option, referred to as the E-2 visa in the
U.S.
is the next choice. The key requirement here is an investment of say, $200,000,
into the target country.The steps
are that you You incorporate a company, open an office and set up a phone and
fax in your desired location..
You open a bank account in the name of
your company.You deposit the funds
in that account.You register the
company with the income tax department.
And finally, you prepare a business plan with five year projections of
income and expenses.With all these
documents and details worked out you make an application for the visa through
the Consulate of the target country nearest to where you live. Thus, for
example, if you live in Edmonton and you are
after a NAFTA E-2 investor visa to move to Phoenix,
you would apply at the US Consulate in
Vancouver.
Initial visas for new companies are issued for two years and can then be renewed
in three-year increments for as long as the company remains in business. For more details on this visa
email us.
5.Fifth Quickest, Easiest and Cheapest
Visas
This is where things get more complicated.
In the United States, when there is no cap on
the quota the H1B visa is best. To be eligible for an H1B visa you must have the
equivalent of a bachelor’s degree in some specialized area (for example, not
just a BA but an engineering degree or a BA in geography,) and the job you are
being offered requires not less than a person with that degree to do it. For executives who do not have a
bachelor’s degree, you can engage an evaluator who may be able to provide an
evaluation of your work experience that equates it to an American bachelor’s
degree.Usually three years of work
experience in a specialized field is the equivalent of one year of an American
bachelor’s degree.So if you have
been working as a manager or executive for 12 years you probably qualify. With this visa the employer must not
only offer you a job, but he or she must also pay you what the Department of
Labor determines is the prevailing wage rate as set by regular wage surveys that
Department publishes.The first step
is therefore to obtain the approval of the Department of Labor for a Labor
Condition Application (LCA) which certifies that you are being offered the
prevailing wage and that there are no labor strikes or lockouts affecting your
employer company. Following Department of Labor approval the employer must apply
to the US Citizenship and Immigration service for you as an employee. The cost
is several thousand dollars in government processing fees. The visa, if issued
is for three years (assuming no visa cap which has been a problem for this visa
for the last two years). It can be renewed for another three years and longer
where an application for permanent residence has been filed. Timing is a few
weeks to several months. For more details
email us.
As for Canada, usually a similar process is involved. One applies to service Canada (also called Human Resources
and Skills Development Canada HRSDC) for a labor market opinion (LMO). There is
also a prevailing wage requirement here. The LMO certifies that there are no
Canadian workers ready, willing and able to take this job. Following the LMO a
work permit application must be filed usually at a Canadian Consulate outside
Canada.
Timing on such applications runs a few months but the government fees are
minimal. However like the H1B visa in the United
States, in Canada the employer must show that he
or she undertook Canadian recruitment efforts to get the LMO. For more details on these work visas
email us.
6.
Other Non-immigrant Work Visas
By now we have pretty much covered the main options available to
professionals and executives.The
rest of the visas that can be obtained cover a wide range of more specialized
areas such as entertainers, religious workers, persons of extraordinary ability,
journalists, government and military officials, etc. These are visas that are beyond the
scope of this overview but if you have a question about any of these areas
email us.
Immigrant Visas
Unlike the non-immigrant visas, when it comes to immigrant visas,
quickness and ease do not always follow the lowest cost in the short run.Since I believe a quick and easy
approach can often be the cheapest in the long run, I will go with that
approach.
1.Quickest and Easiest Immigrant Visas
Probably the best immigrant visas for the United States and Canada are the investor visas. In the
case of the United States, (with the one exception of a multinational
executive transferring as an inter-corporate transferee which we will talk about
later) the investor approach is the quickest and best.
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The U.S. requirements that are easiest to comply with are that
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the investor invests approximately $575,000 with a regional economic development
organization approved by the US Citizenship and Immigration Service. The reality of the requirements is
that the investment will be for a minimum of about four years. However, the
investment will earn income.
Assuming everything works out normally the investment is placed in some office
building development or other project with companies that have
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pretty sold reputation. Since the U.S. government is involved in approving the investment vehicles
involved
there is some measure of security in the investment although caveat emptor still is the guiding
principle. |
For placing this investment (not to be confused with the NAFTA E-2
investment of only say $ 200,000 which is a non-immigrant temporary vehicle) the investor gets a greencard and permanent resident status within
about a year. The greencard is two-year conditional greencard, conditional on
the investor maintaining the investment for two years. But then the condition is
removed and the greencard becomes the regular greencard others hold. For more
details details email us.
As for Canada, the investment program is also very attractive.
Under the Federal program the investor must be worth $800,000 in net equity and
invest $400,000 with the Canadian government for a period of five years,
interest free.At the end of the
five years the money is returned.
The government guarantees the investment. Creative bank programs have made it
possible to borrow the investment and effectively almost “buy” permanent
residence for about $110,000. For more details
email us.
2.Second Best Immigrant Visas
For the United States, as mentioned previously, the next best
immigrant visas are the inter-corporate multinational transferees. Within about one year such an
executive can get a greencard.If
however, there is a start-up involved, then one year must expire before
the executive can make the greencard application.
Email us for details.
For Canada the second best immigrant visa is usually the
Skilled Worker Program.To qualify
the applicant usually needs to speak English or French, have a bachelor’s degree
or trade diplomas, have worked for more than four years, be under 50 years old
and be married to a spouse with a degree or trade diploma. Sponsorship by an employer in such
cases may not be required.However,
applicants can qualify by way of a job offer under a Provincial Nominee Program.
email us for details.
3.Final Immigrant Options
Again there are a variety of other options for both the U.S. and Canada. Most involve a Labor Certification
component where the Department of Labor or Services Canada test the job offer to
see if local workers can be found before the offer is approved. Then the
employer must apply to Canada Citizenship and Immigration for permanent status. Such applications usually take
significant effort, take years to complete and cost thousands of dollars. For more details
email us.
We hope this overview of US and Canadian immigration for professionals
and managers is helpful to you.If
you have other questions contact us.
Here are four questions for you:
- Do you have an immigration problem?
- Are you
confused about what to do?
- Are you overwhelmed by all the paperwork?
- Do you find it hard to get a straight answer from immigration officials?
If so, we need to talk.
Contact me by arranging a consultation on
this page.
I work with executives and cross-border couples
to get through immigration problems to obtain work permits and permanent resident
status (green cards/maple leaf cards). Unlike almost all other immigration advisers
I am a member of the bar, and actually practice immigration law, in both the United
States and Canada. In the last 30 years I have handled over 10,000 legal cases gaining
more experience with each case to help my next clients. I solve immigration problems
for clients so they save precious time, avoid extra effort and make more money.
Andy J. Semotiuk
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J. Semotiuk. All rights reserved.
US Immigration Attorney and Canadian Immigration Lawyer
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