Individual and corporate immigration can involve complex issues, particularly when it involves cross-border business matters. This blog post will aim to demystify several often-misunderstood issues that Canadian businesses and individuals may encounter when looking to move to the United States for work purposes.
Myth 1 – Canadians Do Not Need Visas to Enter the United States
In some instances, individuals have sought legal advice from lawyers (qualified in Canada) who have told them that the United States did not require entry visas for Canadians, and the stamps with restrictive provisions that the US Customs and Border Protection officers put in the Canadians’ passports were a mistake.
Chapter 2 of the United States Immigration and Nationality Act stipulates that all non-U.S. citizens or green card holders entering the United States require a visa. Sections 214 and 231 of the United States Immigration and Nationality Act provided that the US Attorney General may waive certain visa requirements for Canadians.
Even with visa requirements waived for tourism, business visits, transit under most circumstances, Section 101 (4) of the United States Immigration and Nationality Act defined “the application for admission” as a separate process as applying for a visa.
In other words, each time a Canadian travels across the U.S. border, with a work visa or with visa requirements waived, the Canadian still needs to apply for admission to a U.S. border official; that official has the power to admit or restrict the terms allowed, or to deny entry to the Canadian.
Myth 2 – I Found Reliable Information on U.S. Visas on the Internet
Some of the U.S. visa categories for Canadian companies and people doing business in the south found their legal foundation in U.S.-Canada treaties, such as Canada-U.S.-Mexico Agreement, (formerly known as NAFTA, now abbreviated in Canada as CUSMA, and in the US as USMCA), a Canadian lawyer then should be able to interpret it and assist Canadians with their U.S. visa needs?
While the bilateral or multilateral treaties became a part of Canadian law, when it comes to implementation of the treaties in the United States for immigration purposes, the law to follow is U.S. law, and only attorneys admitted in an U.S. jurisdiction qualify in this area.
An advantage clearly is that lawyers admitted in both Canada and U.S.A. can better assist clients due to their understanding of the law, regulations, and procedures on both sides.
There are a large number of websites purporting to provide information about U.S. visas for Canadians.
The only reliable sources are official United States government publications. For example, all the legal basis for the United States Citizenship and Immigration Services is found here: the regulations are updated often to reflect policy changes within the legal authority provided by United States Immigration and Nationality Act, equally important is the policy manual that an immigration adjudicator is bound to follow, as the manual implements the law and its regulations in the field.
One resource external to the U.S. government is the American Immigration Lawyers’ Association library. Roland Luo has been an active AILA member, and AILA is the primary point of contact between the legal profession and the U.S. administration, as well as the United States Congress.
Myth 3 – It Is Easy for Canadians to Obtain U.S. Work Visas
It is easier for Canadians to obtain U.S. work visas, as some but not all of the work visa categories can be obtained at the U.S. ports of entry without going through the U.S. Embassy or the consulates in Canada. Here are the often-used visa categories for Canadian businesspersons:
P: Canadian performers intending to work in the U.S.;
O: Canadians with outstanding abilities in sciences, 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;
E: treaty traders and treaty investors;
L: Canadians executives or senior managers being transferred to work in an US-affiliate or subsidiary of the Canadian company; and
TN professionals: under the USMCA certain Canadian professionals.
While the procedures are simplified for Canadians, the substance for these visa categories remains the same. A Canadian needs to meet the same L-1 U.S. work visa requirements as would by an applicant from another country using the World Trade Organization General Agreement on Trade in Services.
Undeniably, our clients at the U.S. Customs and Border Protection ports of entry encountered many high-trained and experienced U.S. officials – with a well-prepared application, they were able to efficiently obtain the work visas needed to conduct their business in the U.S.
Myth 4 – Visa and Admission Requirements Depend on the Individual U.S. Official
No. U.S. visa policies change from time to time, but the law and its regulations provide certainty when those changes become law. All U.S. visa officials enforce the law, and they do not make policies.
The American Immigration Lawyers’ Association publishes the US Custom and Border Protection’s inspector’s field manual is a comprehensive “how to” manual that details official CBP policies and procedures in an effort to carry out the mission of the US Customs and Border Protection. U.S. Customs and Border Protection internally has procedures to ensure the rule of law prevails over a personal approach to granting visas and admissions. The legal profession, media and U.S. elected officials play an equally important role to ensure the same adherence to the rule of law.
Contact Roland Luo in Vancouver for Trusted Canadian and U.S. Immigration Assistance
Working together with our clients and AILA partners, Roland Luo assists Canadian business owners with their U.S. work visa needs. We work closely with every client and provide tailored legal solutions to meet your needs. If you have questions about obtaining a US work visa, contact Roland Luo either online or by phone at (604) 800-4628.