How Canadians Can Obtain Non-Immigrant and Immigrant U.S. Visas

Here are some quick facts on the many ways that professional Canadians can immigrate to the U.S.

Treaty National Visas

Canadian professionals are eligible to apply for TN-1 or Treaty National visas. The treaty that TN refers to is NAFTA and this category of visa also applies to Mexican professionals. Canadian citizens can show proof of their qualification / university diploma at the border when entering the U.S. along with proof of a firm job offer and job description from a U.S. employer and the immigration officer will process the TN visa. This visa lasts only for a year so it is best described as a visa for short-term employment. A spouse of a TN-1 holder can apply for a dependent visa based on the visa holder’s status. A TN visa may also be obtained after entering the U.S. on a visitor visa by mailing an application to the USCIS. The TN visa may be renewed for further periods of a year. A TN visa holder can apply for a green card by first obtaining an H-1B visa for professionals, which lasts for six years and then applying for adjustment of status to lawful permanent resident. Canadian landed immigrants may not apply for a TN visa.

Canadians Do Not Require A Visa To Travel To The United States

Canadian citizens normally do not need a visa to travel to the U.S. except under certain circumstances. A non-immigrant visa is required for the following reasons:

•                Foreign government officials (A), officials and employees of international organizations (G) and NATO officials, representatives and employees assigned to the U.S. as needed to facilitate their travel

•                Treaty traders (E-1)

•                Treaty investors (E-2)

•                Fiance/es (K-1)

•                Children of fiancées (K-2)

•                U.S. citizen’s foreign citizen spouse, who is traveling to the U.S. to complete the process of immigration (K-3).

•                Children of a foreign citizen spouse (K-4) described above

•                Spouses of lawful permanent residents (V-1) traveling to the U.S. to reside here while they wait for the final completion of their immigration process

Children of spouses of lawful permanent residents (V-2) described above

(List obtained from U.S. Department of State website)

Canadian permanent residents (landed immigrants) however, must obtain a non-immigrant visa or have a passport from a visa waiver country and of course apply for a visa waiver.

B-1 / B-2 Required for Canadian Landed Immigrants

Canadian landed immigrants entering the U.S. as non-immigrants may apply for a B-1 visa if entering on short –term business or a B-2 visa if entering for pleasure, travel or medical treatment. This visa does not permit enrollment in school and if a Canadian enters on a B-1 or B-2 visa then an application to Extend/Change Nonimmigrant Status (Form I-539) must be filed first to change to F-1 (academic student visa) or  M-1 (vocational student visa) status. Form DS-156 is the form to file electronically to apply for a B-1 or B-2 machine readable (laser) visa.

L-1/L-2 Intra-company Transfers

U.S. Companies with Canadian affiliates may transfer employees under L visas for the Canadian office to U.S. locations. An L-1B nonimmigrant is a foreign national who has been employed overseas by a firm with an affiliated entity in the U.S. entering the U.S. to work for the international firm and who possesses specialized knowledge or in other words, an employee at management or executive level (L-1A), or specialized knowledge staff (L-1B) who is being transferred from an overseas affiliate to a firm within the U.S. The manager or staff with special knowledge must have worked with the overseas affiliate for at least one year before the application is filed. Form I-129 Petition for Nonimmigrant Worker must be filed by the U.S. employer, not by the employee. Firms may file individual applications for just one worker or a blanket petition for multiple workers so that new petitions do not have to be filed for each individual that is transferred. A company with a approved blanket petition may transfer an employee after only six months instead of after an entire year of employment overseas. L-1 visas are initially granted for three years but may be granted for up to seven years, allowing the employee to apply for a green card and convert to immigrant status. The spouse of an L-1 holder may apply for authorization to work in the U.S. by filing a Form I-765, and the employment permitted is not limited to a particular employer.

E-1 Treaty Trader and E-2 Treaty Investor

Canadian citizens or Canadian corporate entities may apply for a Treaty Trader or Treaty Investor visa using the Online Nonimmigrant Visa Electronic Application (Form DS-160) or on paper using Form DS-156E. The list of requirements for E-1 and E-2 applicants is available from the U.S. Department of State and includes:

Treaty Trader

• The trading firm for which the applicant is coming to the U. S. must have the nationality of the treaty country.
• The international trade must be “substantial” in the sense that there is a sizable and continuing volume of trade.
• The trade must be principally between the U.S. and the treaty country, which is defined to mean that more than 50 percent of the international trade involved must be between the U.S. and the country of the applicant’s nationality.
• Trade means the international exchange of goods, services, and technology. Title of the trade items must pass from one party to the other.

• The applicant must be employed in a supervisory or executive capacity, or possess highly specialized skills essential to the efficient operation of the firm. Ordinary skilled or unskilled workers do not qualify.

Treaty Investor

• The investment must be substantial. It must be sufficient to ensure the successful operation of the enterprise. The percentage of investment for a low-cost business enterprise must be higher than the percentage of investment in a high-cost enterprise.
• The investment must be a real operating enterprise. Speculative or idle investment does not qualify. Uncommitted funds in a bank account or similar security are not considered an investment.
• The investment may not be marginal. It must generate significantly more income than just to provide a living to the investor and family, or it must have a significant economic impact in the U.S.
• The investor must have control of the funds, and the investment must be at risk in the commercial sense. Loans secured with the assets of the investment enterprise are not allowed.

• The investor must be coming to the U.S. to develop and direct the enterprise. If the applicant is not the principal investor, he or she must be employed in a supervisory, executive, or highly specialized skill capacity. Ordinary skilled and unskilled workers do not qualify.

Canadians who are already in the U.S. in lawful nonimmigrant status may file form I-129 to request a change of status to E-1, Employee of a Treaty Trader or E-2, Employee of a Treaty Investor status. If the Canadian employer is an entity and not an individual, then the entity must be at least 50% owned by Canadian citizens who are lawfully resident in the U.S. in nonimmigrant treaty trader or treaty investor status.

H1-B Visas

Like many other foreign nationals, Canadians with specialty occupations may be sponsored by U.S. employers, who apply for H1-B visas. The specialty occupations include Information Technology, Finance, Banking, Marketing, Sales, Engineering, Teaching, Healthcare, Medical, Legal, Business and Management. All foreign nationals must be able to prove that they hold the required U.S. degree or foreign equivalent and the required U.S. licensure and the application must be filed by the prospective employer (Form ETA-9035, Labor Condition Application, Form I-129, Petition for Nonimmigrant Worker.