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NAFTA REQUIREMENTS FOR WORKING IN THE U.S.: presented by Canada Immigration Lawyer Evelyn Ackah September 2016


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Crossing Borders Seamlessly
Immigration rules and regulations can be frustrating, confusing, stressful, inefficient and always changing. For nearly 20 years, Evelyn Ackah has been focused exclusively on cross-border immigration law. Her goal is to simplify and expedite the immigration process and help open doors to new opportunities.

This presentation will provide you with an overview of U.S. immigration options for employment or consulting opportunities for Engineers, Geoscientists and Engineering Technicians/Technologists.


Evelyn L. Ackah, Managing Lawyer
Ackah Business Immigration Law
(403) 452-9515 ext. 100

Published in: Law
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NAFTA REQUIREMENTS FOR WORKING IN THE U.S.: presented by Canada Immigration Lawyer Evelyn Ackah September 2016

  1. 1. NAFTA REQUIREMENTS FOR WORKING IN THE U.S. Evelyn L. Ackah, Managing Lawyer September 27, 2016
  2. 2. Presentation Overview: I.Introduction II.Using NAFTA III.NAFTA Engineer IV.NAFTA Geologist/Geoscientist V.NAFTA Engineering Technician/Technologist VI.NAFTA Management Consultant VII.NAFTA Intra-Company Categories VIII.Practical Pointers 3
  3. 3. PART I 4
  5. 5. Introduction Crossing Borders Seamlessly •Immigration rules and regulations can be frustrating, confusing, stressful, inefficient and always changing •For nearly 20 years, Evelyn Ackah has been focused exclusively on cross-border immigration law •Her goal is to simplify and expedite the immigration process and help open doors to new opportunities 6
  6. 6. Introduction Crossing Borders Seamlessly •The current economic climate in Alberta is leading us all to look to the United States for new opportunities until things turnaround •This presentation will provide you with an overview of U.S. immigration options for employment or consulting opportunities for Engineers, Geoscientists and Engineering Technicians/Technologists 7
  7. 7. Using NAFTA • The North American Free Trade Agreement was established in 1994 to support economic and trade relationships between the U.S., Canada and Mexico • As part of NAFTA, a special nonimmigrant classification was created – the TN Visa • The TN Visa permits qualified Canadian and Mexican nationals to seek temporary employment in the U.S. • You must be a citizen of Canada or Mexico to qualify for a TN – you cannot be a Permanent Resident 8
  8. 8. Using NAFTA • NAFTA is the preferred method to facilitate cross-border movement between Canada and the U.S. • Used for temporary entry – not permanent • Three main NAFTA categories: 1) business visitors 2) professionals 3) intra-company transferees 9
  9. 9. USING NAFTA NAFTA: Business Visitors/B-1 Visa •Intended for short-term entry – business meetings, training, sales activity, job search activities, interviews •Cannot be engaged in “work” activity •Can enter the U.S. as a B-1 Business Visitor for a max 6 month period 10
  10. 10. USING NAFTA NAFTA: Business Visitors/B-1 Visa •Must ensure business visitor is prepped before attending at port of entry for successful entry •Ideally you should always have a letter that confirms the reason for your cross-border business travel – to support your verbal submission (i.e. a letter or email inviting you for an interview or meeting in the U.S.) •The most important thing when dealing with cross-border business travel is knowing what to say and what not to say •Must not say “work” if entering as a business visitor – that is a four letter word! 11
  11. 11. USING NAFTA NAFTA: Professionals/TN Visa •Three year work permits – renewable indefinitely so long as you can continue to prove no immigrant intention •Must meet educational or experience criteria •Must be exercising the skills of the profession •Must have an offer or contract •NAFTA lists 66+ professions including engineer, geoscientist, scientific technician/technologist •“Manager”, or “Director” are not eligible positions 12
  12. 12. USING NAFTA TN VISA DEFINITIONS Canadian Bachelor’s Degree •A Canadian three-year bachelor’s degree program satisfies the degree requirement; the important element is the requisite degree and not the length of the course of study Post-Secondary Diplomas and Certificates •defined as a credential issued, on completion of two or more years of post secondary education, by an accredited academic institution in Canada, the U.S. or Mexico 13
  13. 13. USING NAFTA NAFTA: Professionals/TN Visa •TN Visas are not dual intent – meaning very difficult to move to Green Card status (not easy but possible) •There are ways to move from TN to H1B Visa (which is a dual intent Visa category) and then to Green Card •There is no limit on the number of TN Visas issued annually – different from the H-1B Visa 14
  14. 14. USING NAFTA NAFTA: Professionals/TN Visa •To qualify for TN status, the intended U.S. activity must be in a profession listed in Appendix 1603.D.1 of NAFTA and you must posses the necessary credentials to be considered a professional •You must actually perform professional-level activities in the U.S. •Almost all of the professions listed require a Bachelor’s degree or higher •Only Bachelor degree exceptions: Management Consultant, Scientific Technician/Technologist, Technical Publications Writer, Medical Laboratory Technologist 15
  16. 16. PART III 17
  17. 17. NAFTA ENGINEER • All different Engineering positions qualify: Civil, Petroleum, Mechanical, Environmental – even Software Engineer • NAFTA doesn’t specify any specialties within the field of engineering – therefore all engineering specialties qualify • Must have the requisite bachelor’s/licenciatura degree in engineering or a state/provincial license – does not state you must be a member of a professional association like APEGA in the U.S. • No experience is necessary – can qualify for a TN as soon as you graduate with a Bachelor’s degree 18
  18. 18. NAFTA ENGINEER • Most successful TN Engineer Visa applications possess a Bachelor’s degree in either Science – with a specialization in some aspect of Engineering or they possess a Bachelor’s degree in Engineering • The TN provisions state that “the alien must posses the necessary credentials to be considered a professional in one of the listed fields” • It’s a hard case to make that someone with a Bachelor of Arts degree in Sociology or Political Science or Communications can work as an Engineer – not likely • We have made the case in the past for some other categories (i.e. Hotel Manager, Economist, Interior Designer) and were successful – even if the degree was not relevant 19
  19. 19. NAFTA ENGINEER • It’s important to understand that for the TN, you only need to have a Bachelor’s degree – it does not state that you must be P.Eng – so you need to be aware of this distinction • This means that you could get a job in the U.S. as an Engineer, but you may still need to qualify under the State engineering regulations – in the meantime, your U.S. employer may choose to have someone else in the organization sign off on your work – but this has no bearing on your qualifications as a TN Visa holder 20
  20. 20. PART IV 21
  22. 22. NAFTA GEOLOGIST/GEOSCIENTIST • Geologists must have a Bachelor’s/licenciatura degree or a state/provincial license • All different types of Geologists/Geoscientists can qualify • Does not state you must be a member of a professional association like APEGA in the U.S. • No experience is necessary – can qualify for a TN as soon as you graduate with a Bachelor’s degree in Geology 23
  24. 24. NAFTA ENGINEERING TECHNICIAN/TECHNOLOGIST • Does not require a Bachelor’s degree • Must work in direct support of professionals in the following disciplines: – Chemistry, engineering, geology, geophysics, meteorology, physics, astronomy, agricultural sciences, biology or forestry • Must possess theoretical knowledge of the discipline • Must possess ability to solve practical problems in the discipline or the ability to apply principles of the discipline to basic or applied research such as science research and/or development, and/or scientific observations and calculations 25
  25. 25. NAFTA ENGINEERING TECHNICIAN/TECHNOLOGIST •Must work in direct support of professionals •To meet this requirement, we usually include in the TN application - the resume, job description, copy of degree and copy of Canadian passport of the degreed professional that the Technician/Technologist will be supporting •Degreed professionals and Technician/Technologist do not have to be working together – it can be an arms-length working relationship – or even cross-border 26
  26. 26. NAFTA ENGINEERING TECHNICIAN/TECHNOLOGIST •Most Engineering Technicians/Technologists have a 2 year Diploma or Certificate •As well as several years of experience in the profession •Sometimes we have obtained TNs for Technician/Technologists without a 2 year Diploma or Certificate based on work experience and on-the-job training equalized by an assessment organization so that it considers the experience equal to a 2 year Diploma or Certificate and we present the report •It is very discretionary and often depends on the officer reviewing the application 27
  27. 27. NAFTA TN VISA U.S. COMPANY REQUIREMENTS •Must have an open position or consulting engagement in the U.S. •Must be engaged in business •Must require a NAFTA professional •Position may be either full-time or part-time CANDIDATE REQUIREMENTS •Canadian or Mexican citizenship •Must have requisite qualifications (baccalaureate or licenciatura degree; or state/provincial license) •The position requires a NAFTA professional 28
  28. 28. NAFTA TN VISA Application Documents •Valid Canadian or Mexican Passport •Original Employer Support Letter or Original Job Offer Letter •Original Legal Submission letter – highly recommended as it outlines the relevant law and why you qualify •Original Degree (even if framed – bring it!) •University transcripts if available •Resume or Curriculum Vitae •Education evaluation, if educated outside of Mexico, Canada or U.S. •Experience letters from past employers (for those TN categories that require proof of experience instead of a Bachelor’s degree) •Filing fee of USD $50 29
  29. 29. NAFTA TN VISA Application Process •Canadian Citizens may apply at Customs and Border Protection-designated U.S. port of entry (airport or border crossing) •Mexican Citizens cannot apply at CBP – they must apply via the U.S. Consulate in Mexico •It is so important that you choose the right port of entry – avoid Coutts/Montana border crossing at all costs!! •Important to speak with an experienced professional before you apply – it’s much harder to fix a refusal or a mistake than to do it right the first time 30
  30. 30. NAFTA TN VISA • Ensure Employer Support Letter satisfies NAFTA requirements – Lists TN category applying under – Provides description of employer – Describes eligibility for the TN category – Provides compensation for proposed engagement – Provides a description of job duties – Lists length or period of proposed engagement • Determine any special POE instructions • Have employer available for phone call at the time you submit the application 31
  31. 31. NAFTA TN VISA TD Visa •For accompanying dependent family members – spouses (must be married) •For unmarried minor children 18 and under •Provide a marriage certificate and birth certificates •TD Visa doesn’t allow for employment •TD Visa does allow for attending school 32
  34. 34. NAFTA MANAGEMENT CONSULTANT • Must have a Bachelor’s degree, licenciatura degree or five years experience in consulting or related field • Management consultants provide services which are directed toward improving the managerial, operating and economic performance of public and private entities by analyzing and resolving strategic and operating problems and thereby improving the entity’s goals, objectives, policies, strategies, administration, organization and operation • Arm’s length versus Employee 35
  35. 35. NAFTA MANAGEMENT CONSULTANT • Management Consultants are usually independent contractors or employees of consulting firms under contract to U.S. entities • Depending upon what the professional will actually do at the company AND if the company can demonstrate that the TN applicant will not act as an employee • Sometimes helpful to have 3 to 5 Original Reference letters attesting to your expertise if you do not have a Bachelor’s degree 36
  36. 36. NAFTA MANAGEMENT CONSULTANT Application Documents Required •All the same documents as outlined above as well as: – Signed Original Consulting Agreement with U.S. company – The engagement should be temporary in nature (under three years), however the status may theoretically be renewed each term without limit – The applicant must meet the minimum requirements for their position, as listed on the NAFTA Professions list – Must be paid per hour, per day, per week as a Consultant – generally not on payroll 37
  38. 38. NAFTA INTRA-COMPANY TRANSFER L-1A Executives must: • Direct the management or major component or function of the organization • Establish goals and policies of the organization, component or function • Exercise wide latitude and discretionary decision making • Receive only general supervision or direction from higher level executives, the board of directors, or stockholders of the organization 39
  39. 39. NAFTA INTRA-COMPANY TRANSFER/L-1A Managers must: • Manage the organization, department or function • Supervise and control the work of managers, supervisors or professional employees • Possess authority to hire and fire, or recommend these and other personnel actions • Function at a senior level within the organization hierarchy • Exercise discretion over the day to day operations or function for which the employee has the authority 40
  40. 40. NAFTA INTRA-COMPANY TRANSFER L-1A Functional managers must: • Manage essential function in the company, but not necessarily manage staff • Provide indispensable or important service to achieving organizational goals • Provide coordination and guidance to other managers, responsibility over assets or sales and direct the work of subcontracted firms • Junior management positions are excluded. A first line supervisor is not considered to be acting in a managerial capacity unless the employees who are being supervised are professionals 41
  41. 41. NAFTA INTRA-COMPANY TRANSFER L-1B Specialized knowledge workers must: • Possess knowledge that is valuable to the employer’s competitiveness in the market place and that is acquired through extensive prior experience with the employer • Be uniquely qualified to contribute to the Canadian employer’s knowledge of foreign operating conditions • Be viewed as a key employee abroad and have worked on significant assignments which have enhanced the employer’s productivity, competitiveness, image, or financial position 42
  42. 42. NAFTA INTRA-COMPANY TRANSFER • If a corporate transaction occurs that affects the relationship between the two entities involved in the transfer, there could be significant implications for eligibility under this L1 category • If a corporate reorganization occurs, the intra-company relationship could be lost and the L1 visa holder could lose his/her status 43
  43. 43. NAFTA INTRA-COMPANY TRANSFER L-2 Visa •For accompanying dependent spouses (must be married) and children 18 and under •L-2 allows the spouse to qualify to apply for an Employment Authorization Document (EAD) •It takes approximately 3 months to obtain, but once received, will allow spouse to work for any employer in the U.S. •Accompanying children cannot obtain EAD – cannot work under L-2 Visa category 44
  45. 45. Practical Pointers Before Submitting Immigration Applications: • Be proactive and consider immigration issues early • Properly assess person and purpose of entry and then develop appropriate immigration strategy and supporting documents (legal counsel can assist) • Consider whether mail-in application more prudent versus Port of Entry application • Choose best Port of Entry (legal counsel can assist) 46
  46. 46. Practical Pointers Watch out for: •Ineligibility due to criminal convictions or prior refusals •Ineligibility due to medical inadmissibility •Entry visa requirements •Immigration medical requirements •Accompanying dependants •Changes in laws, policies or procedures 47
  47. 47. Practical Pointers At the Border: • Educate the person crossing the border • Know the purpose of entry and your itinerary • Always be courteous with immigration officers – they have a lot of power and discretion • Always be honest – this avoids potential misrepresentations 48
  48. 48. Practical Pointers At the Border: •Always travel with proper supporting documentation and package (this includes Business Visitors) •Try to travel during regular business hours during the week – never travel on holidays •Never insist on entry if problems occur - withdraw the application, this is better than a refusal 49
  49. 49. NAFTA CROSS-BORDER ACTIVITY • NEXUSPASS – Highly recommend obtaining Nexuspass to facilitate business travel to Canada – even if just a few times a year – less scrutiny – NEXUS is designed to expedite the border clearance process for low-risk, pre-approved travelers – Again, must be a U.S. or Canadian citizen and not a Canadian PR or U.S. Green Card holder to qualify – For the initial TN Visa application, you cannot go through the NEXUSPASS Line – only after you obtain your Visa 50
  50. 50. ACKAH BUSINESS IMMIGRATION LAW We provide the following cross-border immigration law services: •Temporary Status – Work Permits (TN, L1, H1B, E Visa), Study Permits, Visitor Visas, LMIAs, Intra-company transfers, NAFTA (Professional), GATS, Spousal Work Permits, Criminal Rehabilitation, Restoration of Status, NAFTA Work Permits •Permanent Status – Express Entry PR, Live in Caregiver PR, Provincial Nominee Program, Canadian Citizenship, US Green Card and US Citizenship 51
  51. 51. THANK YOU! QUESTIONS? Evelyn L. Ackah, Managing Lawyer Ackah Business Immigration Law (403) 452-9515 ext. 100