May 4, 2011 | 10:56 pm

TN visa for Canadians

Posted by Cedric M. Shen

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The TN visa was created under the North American Free Trade Agreement between Canada, U.S. and Mexico.  Under this visa, a Canadian citizen may work in a professional occupation in the U.S. if:

1) He/she qualifies under the “Professionals Under the North American Free Trade Agreement” list;
2) the Canadian citizen possesses the specific criteria for that profession;
3) the employment position in the U.S. requires someone in that professional capacity and
4) the Canadian citizen is going to work for a U.S. employer.

Advantages of TN visas

There are several advantages to applying for a TN visa.  First, TN visas are valid for three years, whereas they were previously only valid for year at a time.  This means that the TN visa is valid for as long as an H-1B visa. Second, TN visas are easier to apply for, and to have approved, than other work visas such as the H-1B.  There are two ways to apply for a TN visa: 1) in person at a port of entry (POE) to the United States; or 2) by submitting an application to the USCIS while in the United States.

Should I apply at POE or through USCIS?

Between applying at a POE or through the USCIS, the better alternative is to apply at a POE.  First, the application fee is considerably lower if you apply in person.  The USCIS filing fee is over $300.00 while applying at a POE is less than $100.00.  Second, a decision to grant or to deny the visa is made immediately.  On the other hand, applying for a TN visa by mail to the USCIS may take a couple of months.  If you are denied a TN visa at the POE, you learn the decision for denial right away and you can attempt to correct it immediately or at least very soon.  If your TN visa is denied by the USCIS, it is much more difficult to try to obtain a favorable resolution.  Worse yet, you may be required to leave the United States during this time.

Other disadvantages of TN visas

One considerable disadvantage to a TN visa is that it applies to a very narrow group of professions, making most Canadians ineligible.  In fact, you must qualify within a profession on the TN professional occupations list [LINK] in order to be eligible for a TN visa.  Most of these professions require an advanced degree, or at least a bachelor’s degree in a particular area.  Some of these professions include: architect, accountant, engineer, graphic designer, lawyer, doctor, management consultant, dentist, pharmacist, and college teacher.  So a Canadian citizen with a bachelor’s degree (or even a Master’s degree) in sociology would not likely be eligible for a TN visa.

Another disadvantage is that the Canadian citizen must demonstrate to the CBP agent an intention to return to his/her home country upon the expiration of the visa.  This is not usually an issue when it is an applicant’s first TN visa.  But what if the applicant has already been in the U.S. on a TN visa for nine years?  How does one demonstrate his/her intent to return to Canada if he/she has been in the U.S. for nine years and is asking to stay for another three years?  The best way is to provide the CBP agent with documents showing that the applicant continues to maintain ties to Canada.  This may be done in the form of bank account statements, a provincial driver’s license, ownership of real estate, or having a spouse, children or other family living in Canada.  However, be aware that every CBP agent is different – with different moods and personalities.  One agent may deny a fourth TN visa while another may think nothing of it.  Always be prepared for a denial by having supporting documents to prove your intent to return to Canada.

Yet another disadvantage to a TN visa is that it is more difficult to apply for an employment-based green card.  The reason goes back to the “intent to return” rule.  If you apply for a U.S. green card while on a TN visa, this flies directly in the face of your stated intent to return to Canada.  There are ways to apply for an employment-based green card while on a TN visa, which I will probably outline in a future post.

April 27, 2011 | 4:41 pm

Free legal clinic - Saturday May 7, 2011

Posted by Cedric M. Shen

Every 1st Saturday of the month, attorney Cedric Shen will provide complimentary legal advice regarding your immigration issues.  The next scheduled clinic is:

DATE:  SATURDAY MAY 7, 2011
TIME:  10:00 AM TO 12:00 PM
LOCATION:  3424 WILSHIRE BLVD, SUITE 928, LOS ANGELES, CALIFORNIA 90010
RSVP:  (888) 228-4525

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April 26, 2011 | 10:32 am

E-2 Visa:  Treaty Investor

Posted by Cedric M. Shen

The E-2 visa allows foreign nationals of a country that has a treaty with the United States, to make an investment in a business enterprise.  Generally, the investment must be ‘substantial,’ ‘at risk,’ and the investor must oversee and direct the day-to-day operations.  The visa is valid for three years, and is renewal indefinitely so long as the business continues to operate.

What is a ‘substantial investment’?

Unlike the EB-5 green card, which expressly states a $500,000.00 or $1 million investment, the term “substantial” for an E-2 visa is not so clear cut.  Generally, the investment should be approximately $250,000 USD if the business/enterprise is new.  There may be some cases where the investment is as low as $50,000.00.  However, these cases usually involve businesses which act as a subsidiary to a parent company in the foreign national’s home country.

What does ‘at risk’ mean?

This means that the investment must be at risk of being lost of the business is unsuccessful.  Otherwise, there would be a glutton of people applying for E-2 visas - knowing that there is no risk in losing their investment.

Pros and Cons

The E-2 visa is a great vehicle for foreign nationals and their families to live in the United States while operating a business.  One advantage is that the application can be processed within three weeks under Premium Processing.  Another advantage is that the visa is valid for three years, and renewable indefinitely so long as the business continues to operate.  The downside is that the investment can be significant, and you risk losing all the money and being forced to return to your home country if the business is unsuccessful.  There is also no direct path to permanent residency on an E-2 visa.  While an E-2 visa holder may obtain a green card through employment or marriage, the E-2 visa itself does not make one eligible for permanent residency.

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April 8, 2011 | 4:39 pm

The Looming Federal Shutdown - What It Means For You

Posted by Cedric M. Shen

For the past week, every media outlet has been talking about the repercussions of a federal government shutdown.  To be sure, this will impact Americans (and non-Americans) in many ways.  Federal employees will be furloughed, U.S. military personnel may not get paid, just to name a few things.  The federal shutdown will have an effect on the U.S. immigration systems as well.  The primary department is the United States Citizenship and Immigration Service.  Thankfully, the USCIS has indicated that will continue operations throughout the shutdown – largely because it is funded by the filing fees.

E-Verify, a system that allows employers to determine an employee’s eligibility to work in the United States based on the completed I-9 forms, may not operate.  The Department of State has reported that it will likely shutdown the majority of its operations, only processing visas that under “life or death” emergencies.  The Department of Labor has indicated that it will cease all operations in the event of a shutdown.  Many popular visas, such as the H-1B, require the employer to file a Labor Condition Application, which is processed by the DOL.

So what does this all mean?  We are not really going to know the long-term effects of a federal shutdown.  Much of it will depend on how long the shutdown lasts.  It is probably safe to say that citizens trying to apply for passports in order to travel may face long delays – resulting in cancelled travel plans.

The effects could be more far-reaching for U.S. employers.  A shutdown of the E-Verify system could mean an inability to place newly hired employees on payroll.  Employers of foreign workers may also face a delay in their work visa applications – most notably any H-1B applications.  Prior to filing an H-1B application, an employer must submit a Labor Condition Application to the Department of Labor attesting, among other things, that it will pay the foreign worker a salary higher than the prevailing wage, as determined by the DOL.  This process usually takes at least a week, and the H-1B application may not be filed with the USCIS until the employer receives a certified LCA.  The 2012 H-1B fiscal year began on April 1st, so many employers who plan to hire foreign workers likely submitted their H-1B applications on March 31st.  So they do not have to worry about the DOL shutdown.  However, those employers who are just now starting the LCA process may have to wait considerably longer than one week to get it certified.  Given that the H-1B quota is 65,000 (plus an additional 20,000 for those with master’s degrees), time is of the essence for employers and any delay in filing could result in an inability to get timely approval of a work visa for their foreign employees.

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April 6, 2011 | 7:05 pm

H-2B visas for guest workers

Posted by Cedric M. Shen

I’ve had several inquires from employers who want to employ a foreign worker who does not qualify under the more common work visas, such as an H-1B, TN, L or J visa.  Several of these employers are families wanting to know how they can sponsor their nannies or au pairs – most of whom are citizens of Mexico.  The two most common options are the H-2B visa and the J-1 visa.  I’ve already discussed the J visa in a previous blog, so this post will discuss the H-2B visa.

H-2B
The H-2B is a non-immigrant visa that applies to foreign workers who are not working in the agricultural field. The visa is for employer who have a temporary need for the foreign employee that is intermittent, recurring, peak-load or a one-time occurrence.

To qualify for an H-2B an H-2B visa:

The employer must establish that its need for the prospective worker’s services or labor is temporary, regardless of whether the underlying job can be described as permanent or temporary. The employer’s need is considered temporary if it is a one-time occurrence, a seasonal need, a peak-load need, or an intermittent need
The employer must demonstrate that there are not sufficient U.S. workers who are able, willing, qualified, and available to do the temporary work
The employer must show that the employment of H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers
Generally, a single, valid temporary labor certification from the U.S. Department of Labor (DOL), or, in the case where the workers will be employed on Guam, from the Governor of Guam, must be submitted with the H-2B petition. (Exception: an employer is not required to submit a temporary labor certification with its petition if it is requesting H-2B employment in a position for which the DOL does not require the filing of a temporary labor certification application) ***Source USCIS website
The H-2B visa is valid for one year or less, though it can be renewed for up to three years.  There are many benefits to the H-2B visa.  First, the visa covers a broad spectrum of jobs, such as seasonal ski instructors, au pairs, etc.  These are jobs that may not normally qualify or other work visas.  This visa is also a good option because the educational requirements and work experience requirements are generally less stringent and more flexible than that of other work visas.  For example, an H-1B visa generally requires a specialty occupation and a minimum bachelor’s degree.  These requirements alone usually preclude a nanny from qualifying for an H-1B.  Other work visas, such as a TN visa, do not include nanny or au pairs on the occupation list.  Finally, the visa is ideal for employers who need employees, and can only pay wages lower than that which may be required for jobs under a TN or an H-1B visa.  However, the downside is that the H-2B visa requires considerable recruiting efforts by the petitioner – something that many employers may not be able, or willing, to do for an employee who will only be in the United States for a relatively short period of time.  On balance, however, the H-2B is a great option for employers who have a short-time need for foreign workers.

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March 23, 2011 | 10:49 am

H-1B visa season in full swing

Posted by Cedric M. Shen

As discussed in my previous blog post, the annual H-1B cap quota starts anew on April 1st.  Last year, the cap did not get filled until late January (taking almost 10 months), while in previous years - when the US economy was good - the cap was filled within the first few days.  Since the USCIS begins accepting H-1B petitions on April 1st, most employers and their attorneys aim to file the petitions via overnight mail on March 31st.  In fact, the USCIS usually rejects petitions that were received prior to April 1st.

I’m sure there are a lot of employers out there who are curious about the H-1B process.  While I won’t bore you with the details, I do want to offer a few tips.  First of all, any employer looking to file an H-1B petition on April 1st should have started the process at least one month prior - if not more.  The first step, filing the Labor Condition Application with the Dept of Labor, usually takes a week for approval.  This does not factor in the 10 days the employer has to post the LCA at the workplace.  However, that’s assuming the LCA doesn’t get rejected for a variety of reasons.  One of the most common delays does not even originate from the employer or the attorney.  There have been many instances where the DOL does not recognize the FEIN number (aka Tax ID Number) of the employer - causing the LCA to be denied and requiring the employer to submit written documentation to prove the FEIN.  It could take several days for the DOL to confirm the FEIN and another several days to get the re-submitted LCA approved.  By then, at least three weeks have already passed and you still have to prepare the I-129 and all supporting documents.

In my experience, it’s always best to start the H-1B petition in February if you want to have it filed on April 1st.  As of today, there are only 10 more days before the start of the FY2012 H-1B cap.  I do not anticipate the cap to fill up within the first month (though you never know).  So if you’re still contemplating filing an H-1B petition, it’s certainly not too late to do so.  If you start the process today, an experienced lawyer will probably be able to get it filed by the second week of April.

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March 22, 2011 | 4:27 pm

Alert: Diversity Visa Program scam

Posted by Cedric M. Shen

From the USCIS:  Many people have contacted USCIS about fraudulent e-mails or letters saying they have been selected in the Diversity Visa program. The scammers pose as the U.S. government in an attempt to get money from people hoping to get a visa. Be very cautious about responding to any suspicious e-mails or letters. The U.S. Department of State runs the Diversity Visa Program and has everything applicants need to know at travel.state.gov.

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March 20, 2011 | 10:56 am

J visa

Posted by Cedric M. Shen

The J visa originates from the Exchange Visitor Program, “promotes mutual understanding between the people of the United States and the people of other countries by educational and cultural exchanges, under the provisions of U.S. law.”  There are several categories of individuals who may be eligible for a J visa, including physicians, scholars, nannies, au pairs, students, teachers. camp counsellors, interns and government visitors.  To obtain a J visa, the applicant must first be accepted into a SEVP (Student and Exchange Visitor Program) approved program.  These programs usually charge a fee to the applicant or the sponsor/host/employer.  Furthermore, the foreign applicant has to demonstrate that their intent to remain in the United States is temporary; that they have sufficient funds to cover their expenses while in the United States; and that they have “compelling social and economic ties abroad” that will ensure that they return home upon the expiration of the J visa.

J visas require jumping through more hurdles than a B visa.  So one should consider whether a B visa is more appropriate for your intended activity.  In fact, some activities under a J visa are also permitted on the B visa.  For example, studying for short periods of time, or recreational study (as opposed to vocational study), may be permitted on a B visa.  For example, you may take a one day dance class or cooking class on a B visa, so long as you do not earn any type of formal credit or certification.

Finally, one crucial component of the J visa is the 2-year foreign residence requirement, which requires certain J-1 visa holders to return to their country of nationality or permanent residence for an aggregate of at least two years upon completion of their program.  This prevents a J visa holder who is subject to the requirement from changing or adjusting status until the 2-year requirement is satisfied.  So who falls under the home residency requirement?

- The program in which the exchange visitor was participating was financed in whole or in part directly or indirectly by the U.S. government or the government of the exchange visitor’s nationality or last residence
- The exchange visitor entered the U.S. to receive graduate medical education or training
- The exchange visitor is a national or permanent resident of a country which has deemed the field of specialized knowledge or skill necessary to the development of the country.

However, applicants subject to the requirement may be able to apply for a waiver of the foreign residence requirement under certain circumstances, such as persecution or exceptional hardship.

The J visa is an excellent visa for a narrow category of individuals.  However, I would always recommend that foreign applicants consider other visas before deciding on a J visa, simply because it may eliminate the need to go through an approved exchange program.  For example, nannies/au pairs may opt for an H-2B visa instead of a J visa.  A medical doctor may opt for an F, H-1B or L-1 visa.  Many others may simply qualify for a B visa.

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