U.S. Immigration Options for Canadian Nationals

Immigration between the United States and Canada is not something that Canadians and Americans think about as much as people from other countries. This is largely because Americans and Canadians can move between each others countries so freely. However, this open border can create a false sense of security or give Canadians a sense that the U.S. immigration laws with respect to Canadians are different or special. In fact, while there are some special visa provisions for Canadians, U.S. immigration laws with respect to Canadians are otherwise the same as they apply to all other countries. While it is much easier to enter the U.S. as a non-immigrant from Canada the immigration rules in most other situations are the same. Thus, it is important that Canadian's understand U.S. immigration laws that affect them so they do not inadvertently get into trouble or do something that might impact future known or unknown plans to immigrate to the U.S.

Visiting the United States

As I mentioned in the introduction, Canadian's can move fairly freely between the United States and Canada and do not require a visa to enter the United States in order to visit the for business or tourism purposes. Before the Western Hemisphere Travel Initiative, Canadians didn't even need a passport to enter the United States. Now a Canadian may enter the United States without a visa for business or tourism but must have a passport to prove Canadian citizenship.

Canadians who enter without visas are admitted to the United States as B1/B2. This visa allows the Canadian to travel in the United states for a period of 6 months for business or pleasure. Importantly, the Canadian visitor cannot engage in employment in the United States or receive any renumeration for services or business dealings he may have during his trip. This could be construed as unauthorized employment and cause you to be found inadmissible from the U.S.

Avoiding Visa Violations

Because Canadians can enter very freely and often time for trips that involve business related events it is important that Canadians clearly understand what type of activity is prohibited for those entering on B1/B2 visas. Here are some things you should know:

• Do not engage in unauthorized employment. You cannot engage in any activity for which you receive renumeration for your activities in the United States.
• Do not remain in the U.S. Beyond your authorized period of admission. Remaining in the U.S. beyond your authorized stay can result in the accrual of “unlawful” presence which may bar you from returning to the U.S. for a period of 3 or 10 years. While it is a bit more difficult for the USCIS to establish unlawful presence for Canadians who enter without a visa because they are typically not issued and I-94 with a specific expiration date (they are admitted for duration of status or D/S) the period of admission is generally accepted to be 6 months but there is currently some confusion on this point. Importantly, for purposes of determining when a Canadian national who enters without a visa and is not issued an I-94 becomes out of status and therefore begins accrual of unlawful presence requires some sort of action by the Department of Homeland Security to determine that the duration of status as a non-immigrant visitor has concluded. However, is it just wise for Canadians who enter without visas and who are not issued I-94's to limit their stay in the U.S. to a period not exceeding 180 days.
• Do not abuse the visitors visa by using it as an end-run-around obtaining an immigrant visa. For example if you have a spouse or significant other in the U.S. And your are entering the U.S. On a non-immigrant visa and remaining in the U.S. For long periods of time, have a home or regular residence in the U.S. And are spending more time in the U.S. than in Canada the Customs and Border Patrol (CBP) officials may determine that you are using the visitors visa like a resident card and find that you are an intending immigrant and may deny you entry or in a worse case scenario my place you in expedited removal proceeding which have serious consequences.

Immigration Fraud

The potential issue of immigration fraud is also a concern with Canadians who enter the United States as tourists and then apply to adjust their status to that of a lawful permanent resident through the Adjustment of Status process. The common scenario is these cases usually involves a couple wherein one party is an American and the other is Canadian. In many of these cases the couple lives very close to each other and simply goes back and forth between the U.S. and Canada to visit each other. Inevitably, at some point the couple decides they want to be married and the Canadian wants to immigrate to the U.S. In these cases, if the Canadian in in the U.S. he or she may apply to Adjust Status (AOS) to a lawful permanent resident. AOS has many advantages including the ability of the Canadian national to remain in the United States while the AOS petition is pending. Additionally, the process is generally much faster than applying for an immigrant visa through the USCIS and U.S. Embassy or consulate in Canada. The risk with this approach is that one who enters the U.S. on a visitors visa with the intent to immigrate may be found to have committed immigration fraud. Whether or not immigration fraud has been committed depends on the intent the Canadian national had at the time of the entry. For example, if the Canadian entered the U.S. With the intent to immigrate and avoid the lengthy USCIS processing, National Visa Center processing and consular processing that is involved in apply for an immigrant visa abroad this would be immigration fraud and can have serious consequences. As a practical matter, this can be very difficult for the USCIS to establish and, in my experience is not generally an issue at USCIS Field offices who commonly adjudicate AOS cases involving Canadians such as Detroit. That being said, it is a serious issue that must be addressed and carefully evaluated on a case by case basis.

Furthermore, there are some things that CBE officers look for when Canadians are entering the U.S. As visitors which might result in the denial of their entry in the first place. For example, a Canadian who shows up a the border with a U-Haul truck full of personal belongings will likely run into some trouble trying to establish they are entering just for a visit. This type of thing could also be a problem later during an AOS petition as it evidences an intent to immigrate at the time the Canadian entered as a visitor. USCIS officers when adjudicating AOS petitions for Canadians who entered without visas also look at how quickly after the entry the couple was married. If the couple marries quickly (within 90 days or less of entry) can raise a presumption of immigration fraud. While this issue is not raised by the USCIS with much frequency it is not advisable for Canadians to enter as a tourist with the intent to immigrant and file for AOS. It is not a problem if the Canadian enters the U.S. with not intent to immigrate on the visit at the time of entry but later changes his or her mind. As I mentioned earlier, these things don't come up often and it is difficult for the USCIS to establish the state of mind of the AOS applicant at the time of entry to the U.S. but the consequences of a finding of immigration fraud can cause serious problems so it is not an issue to be taken lighting and should be discussed with a qualified immigration attorney.

Avoid Activities that Could Result in Inadmissibility or Removal from the U.S.

All applicants for admission to the U.S. whether as a non-immigrant tourist or an immigrant must be admissible under U.S. immigration law. While there are several reasons that a person may be inadmissible to the U.S. here is a list of the most common issues:

• Criminal grounds of inadmissibility. Applicants to enter the U.S. as immigrants or non-immigrants can be found to be inadmissible for a variety of criminal related issues. However, the most common offenses I encounter in my practice related to drunk driving and drug possession convictions. If you have a criminal record you may require a waiver to enter the United States even as a visitor.
• Health related grounds some applicants for admission to the U.S. may also be found inadmissible for having physical or mental health issues. The most common issue I see relative to this ground of inadmissibility also relates to drug use. Those who admit to or who have been convicted of drug related crimes may be inadmissible on health related grounds for being a drug addict or drug abuser.
• Prior immigration law violations. Those who have overstayed visas or violated the terms of their U.S. visas in the past may also be found inadmissible.

All of these issues can also result in removal from the United States. For example, if a Canadian gets into legal trouble while in the U.S. he or she may be placed in immigration proceedings and removed from the U.S. Those who have been removed from the U.S. may be prevented from returning to the U.S. for a long time.

Other Canadian Specific Non-Immigrant Visas – The TN Visa

The TN visa is a visa that was established under the North American Free Trade Agreement (NAFTA) and allows Canadian nationals to enter the U.S. as business visitors or to engage in professional activities.

The TN visitor for business allows Canadian nationals to enter the U.S. for business purposes as long as they receive no salary or renumeration from a U.S. source other than for allowed expenses during their travel. In order to enter the U.S. on a NAFTA business visitor the Canadian national must show that he or she:

• Provides proof of Canadian citizenship;
• Describes the purposed of the entry;
• Provides evidence that he or she will engage in certain specified occupations which included research and design; growth, manufacture and production; marketing; sales; distribution; After-sales services, including installation and repair; and
• General services, including management and supervisory personnel engaged in commercial transactions, public relations personnel, tourism personnel, tour bus operators and other specified professionals

The TN professional visa for Canadians allows certain specified Canadian professionals to enter the U.S. and work for U.S. employers to engage in activities at a professional level. The documentary requirements for a TN professional are much more involved and beyond the scope of this article but generally require the applicant to establish that he is entering the U.S. to provide professional services that require at least a baccalaureate degree or other appropriate credentials demonstrating the applicant's status as a professional. There are very specific regulations which establish who may be qualified as a TN professional. The TN visa is an attractive option for Canadian professionals who desire to work in the U.S. because there are no annual limits to the number of TN visas available each year, the period of admission is for three years and the application may be processed at most U.S. ports of entry and does not require an approved USCIS petition. However, TN visas are not available to self-employed Canadians so the applicant must have a formal job offer from a U.S. employer. Meeting establishing the requirements of a TN visa can be complicated so this is a job that is better left to an experienced TN immigration attorney.

Family-Based Immigrant Visas and the K1 Visa

Canadians who wish to immigrate to the U.S. and have a close relative who is a U.S. Citizen may also obtain an immigrant visa or a K1 visa. The most common types of visas in this category of immigrant visa applications made by U.S. Citizen spouses of Canadians, parents of Canadian minor children, adult children of Canadians and fiances of U.S. Citizens.

Applications for these types of visas are initially filed by the U.S. Citizen petition with the USCIS in the United States. With the exception of the K1 fiance visa, the application is then sent to the National Visa Center (NVC) which prepares the case for its ultimate adjudication by the U.S. Embassy or Consulate in Canada.

K1 visa petitions are for U.S. Citizens who have a foreign national fiance who they have met in person in the last two years. The K1 visa is a non-immigrant visa which allows the Canadian fiance to enter the U.S. for a period of 90 days for the purpose of marrying the U.S. Citizen. Once the K1 visa holder enters the U.S. he or she must marry the U.S. Citizen petition within 90 days and then apply to Adjust his or her status to that of a lawful permanent resident. The K1 visa is an attractive option for some couples because it is often processed faster than an immigrant visa based on marriage and allows the couple to marry in the United States if that is desired. The K1 also does not have to go through NVC processing which further shortens processing times.

Conclusion

This is a general overview of the common types of immigration issues faced by Canadians who wish to enter the U.S. as immigrants or non-immigrants. It does not discuss many other non-immigrant or employment-based immigrant visa options that may be available to certain Canadians. This article also does not discuss every possible issue that a Canadian may face when traveling to the United States and there are many other circumstances one might encounter that have the potential to create serious consequences. It is important that anyone who has unique issues or presents issues that might be identified in this article consult with an experienced immigration attorney.