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Canadians escape most of the impact of United States work visa bans
Author: Staff

Although the Trump administration in June extended a ban on green cards issued outside of the United States until the end of the year, as well as banning non-immigrant visas for work authorization, the practical impact of this regulation on Canadians will be limited.

Most United States consulates in Canada have been closed since March and are only now starting to re-open for visa interviews in the next few months.

Furthermore, the most common work visas used by Canadian citizens attempting to work in the United States – the TN visa, the L visa, and the E1 or E2 visas – are based on treaties signed between the countries and cannot be abrogated by an executive order of the President.

The TN visa in particular is a fast and easy work permit created under the North American Free Trade Agreement (NAFTA and its successor, USMCA) covering over forty different professional occupations. Th TN visa allows applicants and their employers to apply for the permit at United States Customs & Border Protection port of entry and receive immediate approval.

Likewise, the L1 visa for intracompany transferees is similarly unchanged by the Trump Administration order, as it too is protected by the free-trade agreement between the countries and allows Canadians who have worked in a senior management/executive or specialized knowledge role with the Canadian entity full-time for one year to transfer to the affiliated United States entity. This too can be applied for at the at United States Customs & Border Protection port of entry to receive immediate approval.

Finally, the E1 visa for treaty traders making significant commercial trade with the United States, as well as the E2 visa for the treaty investor making an investment of $100,000 or greater into an active business that they will manage, is also unaffected. The major difference on the E1 and E2 visa are that instead of applying at the port of entry they require an interview at the United States Consulate, which are now re-opening and scheduling appointments after being closed since March due to the COVID-19 pandemic.

Although the border to the United States is still closed to all non-essential travel, those travelling on work permits to the United States remain unaffected by the recent Trump administration executive orders.

Canadian Express Entry system becomes more accessible to skilled workers

The Canadian government’s overhaul of the permanent resident application program for skilled workers in Canada in January of this year initially caused some concern among those skilled workers who had come to Canada either as intra-company transferees with the intentions of staying long term or as students who were subsequently on open work permits post-graduation.

Previously these two groups of workers could apply for permanent residence with a great deal of assurance that although the process might take upwards of two years there was a very high likelihood they would be granted permanent residence once they had worked in skilled work abroad or in Canada for one year. That is no longer the case.

The reason for their concern is that the Federal Skilled Worker program and the Canada Experience Class program, both of which offered a bridge to permanent residence for those working in Canada under such work permits, was dramatically overhauled by the Express Entry program. Although the program was touted to speed up the process of permanent residence for those skilled workers “invited to apply” to as little as six months, it also created an additional barrier of going through the Express Entry draw before such an invitation was forthcoming from Citizenship and Immigration Canada.

Through the first few months of the Express Entry draw this created a situation whereby Intra-company transferees and workers on open work permits such as international students after graduation were largely frozen out as the invitations primarily went to workers awarded Labour Market Impact Assessments through the temporary foreign worker program.

It was not until spring of this year that the points required for an invitation dropped dramatically from 800 to as low as 450, which opened up invitations to skilled workers on open work permits or intra company transferees with skilled work experience, post-secondary education and English language skills. Time will tell whether this government program delivers the six-month processing time as promised but it has been positive to see access granted to more qualified applicants during the last few months especially since many intra-company transferees and international students on post-graduate work permits chose to come to Canada in order to ultimately become permanent residents of this country.

Criminal mistakes come back to haunt Canadian workers conducting business in the United States

In 2010, the governments of the United States and Canada in 2010 began sharing the FBI and RCMP criminal databases with each other and their respective customs agencies, United States Customs and Border Protection (USCBP) and Canada Border Services Agency (CBSA). This has created a situation whereby many largely law abiding citizens of Canada are being denied access to enter the United States for offences that in some cases occurred decades ago. In many cases these are also individuals that were allowed to enter for years and might even have Canadian pardons (now record suspensions).

There are number of reasons for this state of affairs. Simply put the United States law has always barred foreign citizens who committed Crimes Involving Moral Turpitude (CIMT) from entering the United States but has not had such privileged access to the RCMP criminal database until the Canadian government gave it to them as part of a joint effort to secure the border five years ago. What has resulted is that many individuals who had small crimes from their late teenage or early twenties (many of whom are now either married with grown children or well into successful careers) are suddenly not being allowed to enter the United States without first obtaining a waiver.

It is important to note a few things. First, Canadian pardons (now known as record suspensions) are not recognized by United States immigration and have no effect on admissibility. Whether an offence resulted in a conviction or admission of guilt (such as discharge following a plea agreement) is relevant. Also relevant is whether or not it is a crime involving moral turpitude. Driving under the influence without any exacerbating elements or a simple assault without bodily harm or a weapon do not lead to inadmissibility and neither does one petty offence resulting in a summary conviction. However an indictable or hybrid offence involving a crime involving moral turpitude and any drug conviction does lead to inadmissibility for anyone charged as an adult.

For those caught in this unfortunate situation due to mistakes made years ago, some degree of planning is involved if they wish to travel to the United States for business. Specifically, a waiver and the process of obtaining the documents necessary to submit one can take anywhere from six to eight months for relatively simple offences committed many years ago, and over a year for more serious or recent offences. An initial waiver is only valid for one year but can typically be renewed for five years.

There is a procedure for parole through the border for those who have applied for a waiver and are awaiting a result but have some pressing emergency requiring them to enter the United States. However this is typically only granted for individuals with humanitarian emergencies such as funerals or weddings where an immediate family member is involved. There are examples of business individuals being granted parole but it is very rare and the bar is set high – net benefit to the United States has to be proven through gross sales or US jobs created as a result of the visit as well as the necessity of the inadmissible worker’s presence being established.

It is far more prudent to plan ahead and obtain a waiver, which has a much higher chance of success, but takes six or more months to obtain.

TN Visa or Intracompany Transferee?

Canadian workers and their United States companies seeking the simplest way to get their professional employees or senior management into the United States often grapple with whether to apply for a work permit under the TN Visa category or as an L1 intracompany transferee.

The TN Visa was created under the North American Free Trade Agreement to permit Canadian professionals (engineers, systems analysts, management consultants, etc.) to work temporarily up to three years in the United States, while the L1 Intracompany Transferee allows senior management or specialized knowledge workers to work for the United States parent/subsidiary of a Canadian company provided they have at least one year of experience with the Canadian company in that role.

There are a number of difference between the two categories, which cannot be detailed in this article, but in many cases there are workers who qualify for both the TN visa and the L1 intracompany transferee. Although there are examples recently of US customs officers insisting upon those qualified for both visas to apply for the L1, there is in fact no such statute or regulation requiring that and in these limited cases the officer is exercising his or her discretion incorrectly.

There is in fact an ability to choose one or the other based on short term and long term needs. The TN visa is relatively simple to obtain, more cost effective from the perspective of legal and government fees, but is of a limited duration of three years and not easy to renew. It also is an explicitly non-immigrant visa, which means it does not lead to a green card and those on a TN visa cannot easily apply for a green card if they plan to re-enter the United States while such an application is pending because the TN visa does not allow for dual immigrant and non-immigrant intent. The TN visa is ideal for consultants or professionals or even senior management required to work in the US for limited durations or intermittently.

The L1 visa on the other hand, for those who are qualified themselves or through their companies, does require significantly more evidence on the part of the company and the individual, which leads to a higher legal and government fee, but does permit up to seven years on a stay (which can be extended beyond if not all of the days were spent physically in the United States) and does lead to permanent residence and a green card if the individual so desires. The professionals however who are qualified for such a visa are more limited: senior managers or executives as well as specialized knowledge workers. The latter is becoming more difficult to prove as the US Citizenship and Immigration Services increasingly is employing a more stringent standard for defining specialized knowledge. As with any business immigration matter, planning and forethought are required before moving forward.

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