U.S. work visas and green cards made simple

Doing business in the United States means that sooner or later, one or more of your employees will be required to go there for business.

By following a few simple rules, and with only a basic knowledge of Immigration and Naturalization Service (INS) law, it is possible to get your people across the border without unnecessary delay or immediate expense.

As a starting point, it’s important to know that all visas are divided into two categories: temporary or permanent. Permanent visas are commonly referred to as “green cards” and they are issued on the basis of a U.S.-based sponsor. The person could be either a close family relative or a company that has an immediate need for the Canadian employee’s services.

Generally, Canadian companies that do business in the U.S. will have only a temporary need for Canadian workers in the U.S. and so we are well advised to concentrate on the variety of temporary visas available to Canadian workers.

The most common and least difficult temporary visa is the B-1. This visa is used by visitors who enter the U.S. on behalf of a Canadian company. The activities allowed under the auspices of this particular visa include:

•selling non-U.S. products or services, on behalf of a Canadian company;

•after-sale warranty work, including installation, repair, training services, which as a condition of the sale were promised to a U.S. customer by a Canadian company; or

•a variety of other activities including meetings, research and certain types of distribution activity.

What is not allowed are those activities associated with management, supervision or training, or almost any type of labour necessary for a company’s particular product or service. Note that B-1 visas are granted for periods from one day to one year and can be obtained at a border crossing.

The North American Free Trade Agreement (NAFTA) created the next most commonly utilized work visa — also a temporary permit — designed especially for professional employees such as engineers, scientists, accountants and systems analysts. This one-year visa is renewable as often as you wish but the beneficiary must be a citizen of either Mexico or Canada. There are approximately 65 pre-approved professional positions allowed by NAFTA.

Managers and executives of Canadian companies can also use temporary work visas designed especially for them. If your company has established a commonly-owned subsidiary or affiliate in the U.S., an L-1A work visa is potentially available to any Canadian in your company that serves in a managerial capacity.

L-1A visas are issued in one- and three-year increments and can be renewed indefinitely if the employee simply commutes to and from a U.S. worksite. If the employee chooses to reside in the U.S., be aware L-1As are limited to a total of seven years.

A “cousin” to the L-1A visa, is the L-1B visa, which is reserved for employees who are not managers, but nevertheless have a highly specialized knowledge of a company’s products or processes. L-1Bs are limited to five years, when the beneficiary resides in the U.S., and require clear evidence that the employee in question has a specialized knowledge that is not generally known in the industry and cannot be easily transferred to a U.S. worker.

There are a number of other temporary visas including H-1B (professionals not listed in NAFTA), H-2B (skilled workers) and E visas (investors). It is more important, however, to recognize the conditions under which a work visa may be necessary, rather than what type of visa is needed.

These telltale visas include:

•the employee is travelling to the U.S. two to three times a week or perhaps less frequently, but is staying in the U.S. for days at a time;

•the employee must go to the U.S. to followup with a U.S. customer. (installations, repairs, training, and so on);

•the employee is supervising or training U.S. workers;

•the employee is delayed at the border crossing, or at the airport and asked more than the usual questions about citizenship and purpose of the trip. A series of pointed questions about the exact nature of the employee’s activities while in the U.S. is a clear sign that something may be amiss; and

•your company has established a physical presence in the U.S. (an office, warehouse or manufacturing facility) or you have incorporated a U.S. company and regularly travel with U.S. stationary or written evidence of the U.S. company’s business address.

If someone on your payroll fits the above-described profile, it may be time to contact an immigration consultant or attorney. To avoid confusion, insist that all fees be quoted in advance, and ask what happens if the visa is denied. It is also a good idea to ask the consultant or lawyer for professional references.

By following these simple rules, and with not much more than some good old common sense, you can deal both effectively and efficiently with the U.S. Immigration and Naturalization Service.

Mark Barie is founder and president of Crossborder Development Corporation. He can be reached at 1-800-545-8125 or [email protected]

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