U.S. Immigration Law Tips for People living in Canada

Canadian citizens and Canadian landed immigrants (permanent residents) should consider these tips to live and work in the US.

Over the past few years, immigration to Canada has surged. For a variety of reasons, many people who would like to live and work in the United States now live and work in Canada.

This post will cover some U.S. immigration law tips and options that Canadian citizens and Canadian landed immigrants (permanent residents) should consider, if they do want to be able to visit, live, or work in the United States.

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RANDOM TIPS FOR CANADIAN CITIZENS

• Citizens of Canada can enter the United States on the strength of their passport and do not require a visitor’s visa obtained at a U.S. consulate. If a Canadian citizen enters the United States, he/she is technically in “B” visa status and can potentially change that status in the United States to a different temporary visa status after arriving in the United States as a visitor.

• Citizens of Canada are eligible for TN (Trade NAFTA) visa status. That visa status can be obtained relatively quickly and easily at Canadian international airports or U.S./Canada ports-of-entry; but it is also possible to file Canadian TN petitions by mail. One reason to file a TN petition by mail is if the case is complex either because of the candidate’s qualifications or prior denials or just to avoid the stress and uncertainty of applying in person. Filing by mail takes some of the anxiety and intensity of processing in-person at a port-of-entry. The USCIS adjudicators of TN filings have been, at least traditionally, very reasonable, and you don’t get the visible scorn and condescension that is sometimes associated with TN processing at the border.

• It is legally permissible for someone to have two TN approvals for two different employers. The second TN could be part-time or full-time or both TNs could be part-time.

• It is legally permissible for a U.S. employer to sponsor a TN candidate for a green card even though TN is a temporary visa status.

• It is legally permissible to have an “intermittent” TN or L-1 which allows for work in the United States periodically. Importantly an intermittent L-1 is not subject to the normal 5 year (for L-1B) or 7 year (for L-1A) limits.

• The wait times for visas at U.S. consulates in Canada is very long. Since most Canadians are exempt from visa stamping, this is not necessarily an issue but the long wait for a visa appointment is particularly problematic for E-1 and E-2 visa candidates who want to invest in small businesses in the United States. Such candidates may want to come initially in B visa status and then change status to E-2 by mail.

• E-2 spouses are eligible for work authorization incident to status, that is, they are no longer required to obtain EAD work permits. In some situations it might make sense for one spouse to be the “principal” E-2 and then the second spouse to get ‘open market’ work authorization and then seek a green card through PERM labor certification based on the spouse’s employment with E-2S status and work authorization.

• Canadians should work closely with tax experts on considering their tax obligations in both Canada and the United States. In general immigration attorneys are NOT tax experts.

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RANDOM TIPS FOR CANADIAN PERMANENT RESIDENTS

• Even though you live in Canada, if you are a Canadian permanent resident and require a visa to enter the United States, you may find it faster to get that US visa at a U.S. consulate in your country of birth or a “third country” versus waiting for the long wait times for an appointment at a U.S. consulate in Canada. So if you want a visitor visa to enter the United States, you may want to fly to your country of birth to get a visitor visa there versus wait for an appointment at a U.S. consulate in Canada. The U.S. consulates in Canada have very backed up appointments.

• If you are a Canadian permanent resident and you seek Canadian citizenship, be mindful of the Canadian rules related to eligibility, including physical presence; but there is no issue from a U.S. legal perspective to pursue a U.S. visa status while in Canadian permanent resident status.

• Keep in mind that if you become a Canadian citizen, you are eligible for TN visa status (regardless of country of birth) but you are still subject to the country quotas based on your country of birth. This means that if you were born in India, you will still be subject to the long wait times for a green card as you will be subject to the India cut-off dates.

• Our firm is increasingly working with Canadian permanent residents and individuals in Canada on Canadian student visas who were born in other countries who may want to obtain U.S. permanent resident status. So we are filing EB-2 NIW petitions for people while they are based in Canada and still planning to obtain Canadian citizenship while seeking a green card in the United States. There is nothing in U.S. law that prohibits this and given the long wait times for green cards (for all nationalities), filing for a green card while still seeking Canadian citizenship may be a prudent decision. For example, a citizen of Brazil who is obtaining a Ph.D. in Canada but anticipates wanting to pursue a career in the United States later might be file for a green card via EB-2 NIW recognizing it might take a couple years to complete the process.