Bomza Law Group ::: NAFTA Visa, US Work Visa, Business Immigration, Temporary US Work Visa



	*Employee and Executive Transfer to U.S.*

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Owners, executives, managers and specialized knowledge employees of Canadian Companies seeking to expand to or relocate in the United States may require temporary employment status in the United States. The most appropriate nonimmigrant categories for owners, executives and managers and professionals of such companies are discussed below.

L-1 Intra-Company Transferees

Executives, Managers and "Specialized Knowledge" employees of Canadian companies who intend to continue doing business in Canada (or some country other than the United States) should consider the L-1 category for intra-company transferees. The advantage of the L-1 is that there is no need to show that the company is owned and controlled by Canadian nationals in order to qualify. This option is the logical choice where the company wishes to obtain funding from a U.S. venture capital firm (which often requires the company to give a significant ownership percentage to U.S. investors) or by way of an initial public offering outside of Canada. A disadvantage of this category is that the company must continue to do business outside of the United States for the duration of any the alien's L-1 status. Consequently, a Canadian company seeking to completely relocate to the United States will not be able to utilize the L-1 category. Another disadvantage of this category is that only Executives, Managers "Specialized Knowledge" employees who have been employed by the company in that capacity for at least one year will be eligible for L-1 status.

E-1/E-2 Treaty Traders and Investors

Canadian companies that engage in substantial trade between the United States and Canada or that have made a substantial investment in a U.S. enterprise may qualify for E-1 or E-2 status. A controlling owner of such an enterprise may qualify for such status even though he or she is not an employee of the company. Even an E-1 or E-2 employee is not required to have worked abroad on behalf of the company for any minimum period of time prior to seeking such status. In the case of an E-2 treaty investor, there is no requirement that the company continue to do business abroad for the duration of E status; the company can relocate its entire operation to the United States in such cases. However, an E-1 treaty trader must maintain a sufficient presence in the treaty country to show that the trade is "international." Although an investment as low as $50,000 USD may qualify, the qualifying investment may not be secured on the assets of the treaty business. Further, the percentage of the qualifying investment relative to the total cost of the business must meet a certain minimum level, depending upon the dollar amount of the qualifying funds invested. This percentage tends to drop as the level of the qualifying investment increases.

One significant disadvantage of the E-1 and E-2 categories is that both the company and any employees who seek E status must be nationals of the same country and that country must have a treaty in place which entitles its nationals to treaty trader or investor status. As stated above, this can be a problem if the company intends to obtain further capital from U.S. venture capital firms or through an initial public offering outside of the treaty country.

NAFTA: TN Status

The TN category arises from the North American Free Trade Agreement (the "NAFTA.") Only Canadian citizens are eligible; landed immigrants of Canada are not. Although Mexican nationals are also eligible for TN status, the eligibility requirements applicable thereto are very different. Mexican TNs are not discussed here. Appendix 1603.D.1 of the NAFTA lists all NAFTA-eligible professions. The most common professions are scientist, architects, engineers, economist, lawyers, management consultants and computer system analysts. Candidates for TN status generally must possess a Bachelors degree or other specified credential which demonstrates the professional status. Spouses and dependents of professionals are admitted as TDs under the NAFTA.

NAFTA professionals may process a TN application at the border without seeking prior approval from the INS upon presentation of: proof of Canadian citizenship; demonstration of education credentials; and evidence of a professional job offer in the United States.

H-1B Specialty Occupations

The H-1B category applies to "specialty occupations." The term "specialty occupation" is defined in the Immigration and Nationality Act ("INA") as an occupation that requires a theoretical application of a highly specialized body of knowledge and the attainment of bachelor's or higher degree (or its equivalent) in the specific specialty as a minimum for entry into the occupation in the United States. If the worker does not have a bachelor degree, the INS expects at least three years of relevant work experience in progressively responsible positions for every year that he or she lacks towards a four year university degree.

Many Executives, Managers and "Specialized Knowledge" employees of Canadian companies will possess bachelor degrees (or their equivalent) in specialized fields such as marketing, finance, or computer science, making them ideal candidates for H-1B status. Unfortunately, the H-1B category is subject to several disadvantages, including Labor Certification, prevailing wage requirements and an annual cap on the number of
H-1Bs that may be issued in a given fiscal year.

Bomza Law Group
Immigration Lawyers
45 St. Clair Avenue West, Suite 1000
Toronto, Ontario, M4V 1K9, Canada
Tel: 416-598-8849 or 1-800-993-9971
Fax: 416-598-0331
www.BomzaLawGroup.com