Non-citizens living in the United States  fall into one of 2 general categories:

   Non-immigrants

   Immigrants

This presentation is concerned with non-immigrants.

Non-immigrants are those persons granted temporary authorization to stay in the United States. Such stays are usually for a fixed term but there are exceptions such as students who stay for an indefinite period.

Immigrants are persons who are interested in living permanently in the United States and are commonly referred to as "green card" holders. Green card status is usually obtained through family or employment, and is beyond the scope of this presentation.

The U.S. non-immigrant visa system uses all the letters of the alphabet from A to T, with the exception of G, to describe different types of visas. Some letters of the alphabet are used several times and are numbered, such as B-1 and B-2.

I will only deal with those visas most commonly used by businesses to send personnel to the United States.

These business related visas are as follows (in order of common usage):

Often more than one visa might be available for a given circumstance. To assess the correct visa several questions need to be asked:

To make the assessment you need to have an overview of the different types of visas available and to be able to compare their requirements and restrictions. Choosing the correct visa application is the most important decision in the obtaining temporary status to the United States.

For Canadian citizens, landed immigrants and other citizens of Commonwealth countries a B-1 visa is available at the port-of-entry. It is the simplest way to enter for the purpose of temporary and intermittent business activities. It is the most common method of entry used by Canadians doing business in the United States.

While on a B-1 visa one cannot engage in productive labour, i.e. actual physical work or even non-physical work that creates a product or provides a service to a consumer (except as allowed under NAFTA).

A B-1 visitor must maintain permanent residence in Canada. There must be no intent to abandon Canada as a place of permanent residence. Evidence of family, business or property ties may be helpful in demonstrating the requisite intent.

B-1 visitors may participate in business meetings with associates, co-workers, professionals. They may attend conferences or conventions. They may negotiate contracts or seek investment opportunities. They may buy personal or real property.

There is a broader list of acceptable tasks for a B-1 visitor that is allowed under NAFTA that allows activities such as research marketing, sales, distribution and after-sales services. A B-1 visa under NAFTA may be obtained for a one year period.

There is often no paperwork required. It is recommended for NAFTA or unusual circumstances that the visa applicant obtain a letter from the U.S. or Canadian company which may be presented at the port of entry.

Unusual situations where I have used B-1 visas include:

Bringing an entire Canadian film crew into the United States to shoot parts of a movie

Allowing a NHL hockey player to go to a tryout. (Usually NHL players are under H-1B professional status)

Attending interrogatives or examination for discovery as a court witness.

The L-1A visa is available for employees of companies who have specified corporate relations between a Canadian company and the American company. Allowable relationships in which companies may transfer certain types of employees back and forth include

Parent/ subsidiary

Affiliate

Joint venture (50/50)

Branch office

The employee seeking the transfer must have been employed by the Canadian company at least one year during the preceding 3 year period outside of the U. S. as an executive, manager or person with specialized knowledge. For the transfer to be proper the Canadian company must continue operations outside of the United States, that does not necessarily mean continuing in Canada so long as the operation continues elsewhere. The rationale for this requirement is that the transfer is of a temporary nature and upon the completion of the temporary transfer the employee must have somewhere to return outside of the United States.

To qualify as an executive the employee’s duties should include the direction of the management of the entire organization or one of the main components or functions. That person must have broad discretion in decision making and should be subject to only general supervision by superiors. Employees actually involved in the production of goods or services are ineligible.

Managers that are eligible for L-1A visas are employees that direct the organization, a department or a subdivision. Such an employee must have the authority to hire, direct and fire employees.

Employees with specialized knowledge that make them eligible for L-1A visas are those individuals who have special knowledge of a company’s product, service, research, equipment, techniques or management. It can also mean an advanced level of knowledge or expertise in the company’s processes or procedures.

There are special rules that govern newly opened offices. A new office is one that has been doing business for less than one year. To transfer an employee under the l-1A classification to the United States to open such an office, the employer must initially demonstrate that the new office will support an executive or managerial position for one year. The employer must also demonstrate that the company has secured sufficient physical space in the United States to house its new office. The application must show the proposed number of employees and positions they will hold and provide evidence of the size of the anticipated investment for equipment, inventory, staff and other ordinary costs.

Ordinarily the L-1A can be issued for up to 3 years, with only 1 year for a new office situation. The L-1A can be renewed up to 4 more years for a maximum of 7 years in the case of executive or manager. L-1A for specialized knowledge employees can be obtained for a maximum of 5 years.

TN - NAFTA Trade Professionals

The NAFTA professional or TN visa is available to Canadian and Mexican professionals who are specifically identified on the NAFTA agreement as eligible for that status. Although these visas are granted only for one year at a time they may be renewed annually without any limit as to the number of times they are renewed.

The professional must be engaged in their field of endeavor at a professional level. It must be for pre-arranged employment, and the visa must be sought with the job offer in hand. The employment must be for a company, individual or other legal entity, it cannot be in a self-employment situation. Independent contractors are allowed TN status if they have a contract with another U.S. entity.

Almost all of the professions listed on the recognized list of professionals require a Bachelor’s degree or higher. The most notable exception to that requirement is that of management consultant which requires either a baccalaureate degree or five years experience in consulting or related field.

H-1B - Temporary Professional Worker

The H-1B status is a visa for a professional worker on a temporary basis. This status is for an initial period of 3 years and is obtained by the employer applying to the Labour Department of the INS.

This category is subject to an annual cap that is set by the INS and the government. Once the CAP (125,000 last year) is met no further H-1B visas may be approved until the next calender year.

The maximum time for this status is 6 years. Its main advantage over the TN visa is that one may apply for permanent residence or green card status while employed in the U.S. on this status. Although a temporary employment must be demonstrated in order to obtain H-1B status, one can apply for an H-1B extension even after a permanent residence petition has been filed. This is possible although seemingly contradictory, because of the recognized concept of "dual intent". Dual intent means that a single individual may have both a temporary intention for one purpose and a permanent intention for another purpose. The "dual intent" concept is not applicable to B-1 or TN visa holders which is one should change from TN status to H-1B before applying for permanent residence.

The definition of Professional is different under H-1B than TN. All H-1B professionals must hold a bachelor’s degree, foreign equivalent or equivalent by means of work experience.

A professional is defined as a specialty occupation that requires the critical and practical application of a body of highly specialized knowledge. There are specified professional areas including (to name just a few):

- Accounting

- Business Specialties

- Computer Analysts and Engineers

- Medical and Health

- Education

To be designated professional, the person must typically have completed a specified course of study at an accredited college or university. Such a degree must be the minimum requirement for entering the position in the United States.

Some licensed professionals can overcome the bachelor’s degree requirement by carefully documenting those special qualifications. The person must have a licence, registration or certification authorizing the person to engage in the profession and the required equivalent training to a bachelor’s degree. The INS will allow 3 years of specialized training or work experience for each year of college that the person lacks. Different equivalency requirements exist for a Master’s Degree, and no substitute exists for a PhD requirement.

In addition to having a professional licence in Canada the person must be eligible to perform the licensed duties of the profession immediately upon arrival in the U.S. The INS will in most cases require the person to have a licence, however in some circumstances the INS will approve an un-licensed person who is under the supervision of a licensed person - this is allowable only in professionals where it is commonly done.

For the company to be eligible to hire an H-1B professional it must demonstrate the need for such a high level employee in the U.S. This will include evidence that it has the ability to pay the beneficiary’s salary and business expense.

Most importantly the application must contain a Labour Condition Application approved by the Department of Labour to ensure that the hiring will not adversely affect U.S. workers. Before filing the H-1B petition with INS the Labour Condition Application must be approved by the Department of Labour.

Interestingly enough the Labour Department does not actually analyze the application. It does not review any supporting documentation. It just ensures that the application is filled out correctly. It will only refuse the application if there is a complaint.

The Labour Condition Application should not be confused with a Labour Certification for a green card which is far more difficult. There is no advertising requirement. No supporting documentation is required.

Both of these are business visas that are available to business persons who carry on substantial trade with the U.S. or has invested or plans to invest substantial monies into a business operating in the U.S.

The INS will grant E-1 status to one carrying on substantial trade with the U.S. The applicant must be in an executive, supervising or essential skills category. Both the company and the individual applicant must be Canadian by definition.

Trade to the U.S. means an exchange of goods and services. Trade includes the exchange, purchase, or sale of goods or merchandise. Service activities include such industries as:

- banking

- transportation

- communications

- advertising

- management consulting

- accounting

- engineering

Substantial trade is evaluated on a case by case basis with regard to four factors:

Monetary values of each item

Volume of trade, total revenues generated

Number of trades

How long the trading has been going on

A weakness in one area may be offset by a strength in another area.

Applications are submitted to the INS in Toronto where they must be heavily documented.

For the applicant to qualify as executive, supervisor or essential skills category the INS reviews 6 factors:

To ascertain whether a company is Canadian, the nationality of the company is based on the nationality of the people who own at least 50% of that company’s shares. U.S. permanent residents who own shares of the company cannot be counted.

The E-1 visa allows employees to travel freely to and from Canada and to live and work in the United States, since it does not require that a foreign residence be maintained. This is unlike any other temporary visa which requires a foreign residence to be maintained. It can be maintained indefinitely as there is no time cap limit . Despite that it is unlimited it is still considered to be temporary and to apply for and renew the state the applicant must show an intent to leave the U.S. on completion of the business.

Treaty Investor - E-2

Largely, all of the general comments made in respect of the E-1, except as they related to trade, are applicable to the E-2, Treaty Investor status.

The essential difference between the two is the requirement for E-2 for a substantial amount of investment in a U.S. business.

For a new business, the general prospect of starting a new business is not sufficient to obtain such a visa. A business plan with significant legal commitments that show a high probability of implementation will be necessary.

The definition of substantial investment is largely dependent upon the nature of the enterprise. The greater the minimum investment necessary to start a business the greater the investment required. Many immigration experts consider US$300,000 as safe minimum amount. Smaller sums are considered and if appropriate passed but they are considered riskier applications more prone to refusal.

The investment must be a significant proportion of the total existing or start-up business value. The smaller the business the higher the percentage of the investment required.

The investment by the Canadian company must represent a large portion of the total investment (more than 50% in most cases). If loans must be obtained to bring investment to the substantial level such loans must be secured by personal, not corporate, assets. The investors must be shown to be personally at risk.

The most significant problem with applying for this visa is the question of what is first, the investment or the visa. A business can invest substantial amounts in a U.S. start-up business only, to have a refusal. Or alternatively a lack of legal commitment will most certainly result in a refusal. The potential solution are business deals legally documented that are only contingent on the visa being granted.

E-2 visas are generally more difficult than other visas to obtain because of the significant amount of and type of documentation required to prove the investment.

This is a very specific type of visa for training purposes that has been approved in advance

by the United States Information Agency. It is used for certain students, scholars, trainees, teachers, specialists or leaders in certain fields. It is also available for graduates of foreign medical schools seeking graduate education or training in the U.S.

J-1 applications are closely scrutinized by the USIA to ensure that applicants are planning to participate in a bona fide training program and are not attempting to use it to avoid the necessity of labour certification or as a temporary substitute for more appropriate temporary business visas.

This visa will not exceed 18 months and only runs for the actual length of the training program. To use this category the program itself is approved by the USIA and then the sponsors of the program are authorized to issue certificates of eligibility to qualified individuals.

The O-1 visa is suitable for the top persons in their fields of endeavor including sciences, arts, education, business or athletics or who have demonstrated extraordinary record of achievement in the motion picture or television industry.

The general standard is a high level of achievement in the field which is evidenced by a degree of skill and recognition substantially above the ordinary.

This visa can work for an employment situation and in a self-employment situation.

The standards are so high (e.g. nominator or recipient of Nobel, Pulitryer, Oscar, Emmy, etc) that I mention it in passing in case one day you have need of such a visa.