Visa Lawyer Blog

Articles Posted in NAFTA Visas

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Throughout the next few months, USCIS will begin the process of returning H-1B petitions that were not selected in the H-1B lottery for fiscal year 2017. Each package will contain the respective H-1B petition along with a rejection notice specifying that the petition was not selected in the lottery. If you would like a copy of your rejection notice, please contact your employer or the attorney that filed your petition with USCIS. If you were not selected in the H-1B lottery for fiscal year 2017, there are a few visa options you may want to consider applying for. As always you can visit our website to read about the various different visa types that may be available to you. To discuss your options moving forward, please contact us for a consultation. Do not despair. Many applicants that were not selected in the H-1B lottery in previous years, have been chosen in subsequent years.

Long Term Options for Employment

Employment-Based Green Card

Typically, the employment-based green card application is the most permanent long term option for employment. The drawback is that obtaining an employment-based green card is a very long process that will require you to maintain another nonimmigrant status, while your green card application is pending. For more information on employment-based green cards please click here.

Family-Based Green Card (Adjustment of Status within the United States)

If you are the spouse, parent or child of a U.S. citizen, you may be eligible for family-based permanent residency. The green card application includes the application for employment authorization, which is granted within 3 months of filing. Employment authorization allows the applicant to work while their application is in process. Please be aware that the 3-month time frame for employment authorization is only for applicants applying for adjustment of status from within the United States. For more information about this process please click here.

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Every year USCIS receives and adjudicates approximately 6 million applications from foreign nationals seeking to immigrate to the United States, and U.S. companies seeking to employ foreign workers temporarily.  According to the Department of Homeland Security’s Office of Immigration Statistics, “an estimated 13.1 million lawful permanent residents (LPRs) were living in the United States on January 1, 2013.” Of these permanent residents, more than half–8.8 million–were eligible to apply for naturalization. Additionally, the United States issues approximately 700,000 temporary non-immigrant work visas for a variety of temporary workers including: highly skilled foreign workers employed in specialty occupations in the STEM fields, fashion models, internationally acclaimed athletes and entertainers, aliens of extraordinary ability, religious workers, intra-company transferees, treaty traders/investors, foreign media workers, and agricultural and seasonal workers.

The reason the issuance of temporary worker visas is so low, when compared to the issuance of permanent resident cards, is because most of the temporary foreign worker visa programs are subject to a congressional cap, that limits the amount of non-immigrants that can be admitted per fiscal year. Additionally, certain temporary nonimmigrant worker visa classifications are granted for a specified period of time, although in most cases at least one extension may be granted. The cap applies primarily to the H nonimmigrant worker classifications, and non-minister religious workers. The H visa category accounts for approximately 54% of all visas issued for temporary workers. That is why the H visas are the most talked about visas among politicians when discussing immigration reform. The cap does not apply to treaty traders/investors, aliens of extraordinary ability, intra-company transferees, NAFTA professionals (Canada and Mexico), and foreign media workers. In comparison to developed countries, the United States admits a relatively low number of temporary foreign workers. Foreign workers are typically admitted either to fill labor shortages in the American job market, or because of their exceptional, or highly technical skills, as is the case for the H-1B visa classification.  Only highly skilled foreign nationals, aliens of extraordinary ability, aliens holding advanced degrees, high capital investors, nurses and physical therapists, doctors in undeserved area, and recipients of national interest waivers, have the unique opportunity to obtain permanent residence based on employment.

The mammoth task of meaningful immigration reform will not be easy and it will not happen overnight. The presidential nominees have failed to outline a clear strategy to overhaul our immigration system. None of the presidential candidates have addressed the most contentious areas of immigration policy that must be revised, in order to repair our broken immigration system.

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The 27th AILA (American Immigration Lawyer Association) California Chapter Conference was held between the 13th and 15th of November 2014 at San Jose, California. Attorney Yingei Zhou, Esq. was in attendance on behalf of our law firm. The conference concentrated on several trending topics such as status of comprehensive immigration reform, consular processing and updates with border posts in Mexico and Canada, driver’s licenses for undocumented workers, unaccompanied alien children (UAC), H-1B/L-1A/O-1/EB-1 adjudications, federal litigation, and advanced family immigration issues, as well as staple subjects like evidentiary issues in removal proceedings and PERM applications.

This article provides you several important updates from the conference addressed at the conference, especially the government open forums with AILA practitioners, USCIS representatives, CBP officers, and San Francisco Asylum officers.

In the following weeks, we will post more articles to address the trends on each specific visa applications and immigration proceedings discussed in the conference.

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By Yingfei Zhou, Esq.

The TN is a wonderful category to achieve quick entry for Canadians and Mexicans without the extra H-1B baggage of a labor condition application (LCA) or specialty occupation analysis. Canadian professionals listed in Appendix 1603. D.1 to Annex 1603 of NAFTA can apply and be admitted to the U.S. under TN work category in a 24-hour period. The TN is also useful Canadians and Mexicans who have used up their allotted L-1 and/or H-1B time.

When presenting a TN application at a POE/PFI, the application paperwork should be straightforward and streamlined. You need to bring proof of your Canadian or Mexican citizenship, a detailed letter describing the professional activity as it appears in 8 CFR 214.6, documentation of the credentials as listed in Appendix 1603.D.1 (a resume is recommended), and application fee. The application must include every item required in 8 CFR 214.6(d).

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By Yingfei Zhou, Esq.

In late Friday afternoon of May 2, 2014, the client, a Canadian citizen, contacted our firm about applying for a TN visa as a Technical Publications Writer. A few days before coming to our office, he was denied TN status at the U.S./Canada Champlain border. According to the client, the border agent denied the application, after finding that our client had no experience as a Technical Publications Writer based on the documents presented at the interview. The denial was later confirmed by the CBP supervisor.

The client contacted our firm and wanted to retain us to review his prior application documents which were all prepared by him and help him re-apply for the same position. During the initial communication, the client told us that he already booked an early flight on Monday morning, May 5, to re-apply for the same visa at the Montreal airport. In particular, the client was worried about the strength of his case and was concerned about lack of time for case preparation before his travel on Monday. To relieve his anxiety, the case was immediately assigned to an associate attorney at our office specialized in TN visa applications to ensure that the case would be finished in the same afternoon.

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Great update provided by AILA regarding TN Visa Admissions for Canadian Applicants. The fundamental and most valuable benefit to Canadians under NAFTA is the speed with which applications can be processed at the Port of Entry. You can arrive to the Border, present the application, pay the filing fee, and walk away with a record of admission (I-94) to evidence your newly acquired status. Unlike remote service center processing, this procedure also provides a rare opportunity to explain your application by having the chance to try to address the adjudicator’s concerns right on the spot. NAFTA frequently gives us this rare opportunity.

The North American Free Trade Agreement (NAFTA) allows certain Canadian and Mexican professionals to qualify for TN nonimmigrant classification in order to provide professional services in the United States.

A citizen of Canada may apply for TN classification concurrently with an application for admission at a U.S. Class A port-of-entry, at a U.S. airport handling international traffic, or at a U.S. pre-clearance/pre-flight station. It is not necessary for a citizen of Canada to first apply for a TN visa at a U.S. consulate outside the United States.

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The TN nonimmigrant classification permits qualified Canadian and Mexican citizens to seek temporary entry into the United States to engage in business activities at a professional level, as defined in the North American Free Trade Agreement (NAFTA).

Generally, to be eligible for TN status: 1) you have to be a citizen of Canada or Mexico, meaning permanent residents, including Canadian permanent residents, are not able to apply to work as a NAFTA professional; 2) your profession qualifies under the NAFTA regulations; 3) the position in the United States requires a NAFTA professional; 4) you have a proffered job with a U.S. employer; and 5) you need to demonstrate qualifications to practice in the profession in question.

Among all the listed professions, Management Consultant has undoubtedly become the most popular one. Our office has helped various clients obtained their TN status as a Management Consultant. For your reference, here we’ve listed the top 5 points need to pay close attention to when applying under the category of Management Consultant.

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Canadians have unique procedural options to apply for admission in a status that authorizes employment. The different procedural options primarily are for L‐1 intracompany transferees and TN professional workers.

Intracompany Transferees L1 Visa:

Under the North American Free Trade Agreement (NAFTA), citizens of Canada are authorized to present a petition for L‐1 classification concurrently with an application for admission to the United States. Customs and Border Protection (CBP) officers are authorized to adjudicate such L petitions.

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The North American Free Trade Agreement (NAFTA) Professional (TN) visa allows citizens of Canada and Mexico to seek temporary entry into the United States to engage in business activities at a professional level, such as Accountant, Economist, Computer Systems Analyst, Engineer, etc.

Only Canadian and Mexican citizens who are professionals can apply for a TN Visa to work in the United States. The visa lasts up to a maximum of three years which is consistent with other non-immigrant worker categories, such as H1-B. However, the TN process is usually quick if qualify and there are no limits on how many of these visas are issued each year.

In order to obtain the TN status, beneficiaries must have an offer from a U.S. company or a client that is a U.S. company. Also, they need to ensure that they have the necessary qualifications that meet the requirements of the visa, according to the list of “NAFTA Professional Job Series List”.

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In a previous Blog post we have updated the period of Admission for Canadian Applicants, this post will provide the latest update for Mexican Professional Applicants under NAFTA.

Prior to Mexico’s accession to the U.S./Canada agreement. IMMACT90 made U.S. immigration laws more restrictive. When Congress later approved the favored relationship–NAFTA–citizens of Mexico were given the benefit of the then-current U.S. immigration law. Benefits granted to Canadian citizens of the CFTA prior to IMMACT90, therefore, were not granted to citizens of Mexico. Unlike Mexicans, Canadians are not required to have visas except in the E and K categories, although they must meet all the requirements of a visa category to be eligible for admission to the United States.

In contrast, citizens of Mexico without border crossing cards (BCCs) must have visas, and therefore, they are not eligible for the port-of-entry adjudication afforded Canadian citizens by NAFTA. Although U.S. immigration laws have become increasingly restrictive, NAFTA citizens of Canada and Mexico are favored more than businesspersons from any other country.

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