TN Visas: the NAFTA visa for Canadian and Mexican citizens.

By Christopher Kerosky

There is a special visa for Canadians and Mexicans that gives them an advantage over applicants from other countries in obtaining such working visas.  It is called the NAFTA Professional Visa or “TN” visa and it allows Canadians or Mexican citizens to come with less difficulty than persons from other countries, provided they have the required training and education. 

The TN visa was created by the North America Free Trade Agreement (NAFTA) in 1994, to allow for the exchange of qualified professionals from Canada, Mexico, and the United States. Canadian citizens may apply for the TN visas at the U.S. Embassy and Consulates.

What do you need to prove?

An applicant needs to prove that they have a college education or the equivalent amount of education and experience. 

There must also be a employer/sponsor who is willing to employ them.  Mexican or Canadian applicants must work in a prearranged full-time or part-time job, for a U.S. employer. Self employment is not permitted.

The sponsor must provide a letter of employment or a contract which details the professional work that the applicant is being offered in the United States. The position must be of a “professional” as that is defined by NAFTA and the immigration regulations.  The State Department and the Embassies are very strict on what is considered a “professional” degree and so it is important that the job fit their defined list of “professional jobs”.

Persons whose job offer is not considered “professional” will be denied the visa.

What Jobs Are Considered Professional?

There is a list of jobs that are considered professional.  This list includes but is not limited to the following:

·       accountant,

·       architect,

·       computer systems analyst and other computer professionals,

·       doctors, dentists and other medical professions;

·       economist,

·       engineer,

·       forester,

·       graphic designer,

·       hotel manager,

·       industrial designer, interior designer,

·       librarian,

·       lawyer,

·       mathematician,

·       various scientists,

·       social worker and

·       teachers at the elementary, high school and college level. 

Each of these occupations has their own degree requirements.

What Sort of Documentation is Required?

The application requires evidence that the applicant has the required educational qualifications and job experience.  This includes a copy of the applicant’s college degree and letters from previous employers showing the applicant’s experience in the professional field.

If you’re the applicant is married or has unmarried children under 21, they can come with him. 

What is the Procedure to apply for TN visas?

Once all the required application forms and documentation is ready, the person applying needs to schedule an appointment with the Embassy or apply at the border in some cases.   

During the interview, the applicant will present all of the documents.  The applicant needs to be prepared to describe his/her qualifications for the job, professional experience, and the nature of the work offered. 

The officer considering the case will then make a decision after the initial interview.

Once inside the U.S., the visa can be extended by the applicant as long as the job remains in place.

Conclusion.

Professionals from other countries typically come to the United States on H1B visas.  Because there is annual limit on H1B visas and that limit has already been reached for fiscal year 2019, presently there are no H1B visas available until October 1, 2019.  The TN visa is a way for Mexicans and Canadians to avoid this backlog and come to the U.S. relatively easily, provided they have a job offer and the required qualifications.

WARNING: The above is a summary discussing legal issues. It is not intended to be a substitute for legal advice. We recommend that you get competent legal advice specific to your case.

OBTAINING OR RENEWING A U.S. PASSPORT

By Susanna Bogue, Esq.

In 2007 laws were changed requiring all US citizens to have a US passport (or US passport card) to travel to Canada and Mexico. Prior to then, US citizens were allowed to travel showing their birth certificate or certificate of US citizenship or even a driver’s license. Now, the combination of many ten year passports expiring as well as the fact that there are five states (IL, MN, MO, NM, WA) and a territory (American Samoa) that are not in compliance with the Real ID Act (which means in January 2018 their residents will not be able to use a driver’s license to board a plane), and the fact that many countries will not allow a traveler to enter if they have less than six months on their existing passport, the US Department of State announced over a year ago that they would like US citizens to apply even before their current passport expires if they want to avoid not being able to travel out of the country.

Fortunately, most people holding a ten year passport expiring in 2018 are eligible to renew by mail using Form DS-82. Please consider starting the renewal as soon as possible, even if you still have some months left on your current passport. If your plans include travel this summer, it would be a good idea to pay the extra expedite fee so that you will have the new passport with its new number to input into your airlines ticket information.

To renew by mail you need the following:

1)     You need to submit your old passport which had to be issued within the past 15 years.

2)     Your old passport cannot be damaged beyond normal wear and tear.

3)     You must have been over 16 when your old passport was issued.

4)     Your old passport must be issued in your current name or if your name has changed, you are able to submit an original or certified copy of your marriage certificate, divorce decree, or court order.

If any of the above criteria are not met, you are not eligible to renew by mail and must submit instead Form DS-11 to a passport facility or passport agency office.

5)     Provide one 2x2 photograph. Staple the photo to the application using four staples vertically in the corners as close to the outer edges as possible. Do not bend the photo. As of last November, you must remove your glasses for the photo. https://travel.state.gov/content/passports/en/passports/photos.html

6)     Fee. The fee for those 16 and over is $110 for a passport book (i.e., not a passport card. A passport card can only be used for travel to Canada and Mexico and the fee for renewing one is $30). Checks and money orders payable to the “U.S. Department of State” can be used for renewals.

7)     When mailing your passport application, please use a large envelope so the application does not need to be folded. Mail using the US Postal Service and request a trackable delivery method such as Express Mail, Priority Mail with Signature Confirmation or Delivery Confirmation. In my experience, it is worth it to pay for Express Mail service. 

8)     If you live in California and are using the routine processing, you mail the above to the National Passport Processing Center, PO Box 640155, Irving, TX 75064-0155

9)     If you are requesting Expedited Service, also enclose a check or money order for $60 payable to the “U.S. Department of State” and write “EXPEDITE” on the outside of the mailing envelope and mail it to National Passport Processing Center, PO Box 90955, Philadelphia, PA 19190-0955

For travel later this summer, I would suggest paying the $60 expedite fee to avoid any problems or delays, especially as we get closer to the summer months.

Please also be aware that children under the age of 16 are issued US passports which are only valid for five years and their renewal cannot be done by mail, it must be done in person.

Whether you are a newly naturalized US citizen, or a US citizen for many years, you will need to have your US passport before returning home or for other international travel.

To get more information on applying for a US passport, whether you are renewing an old passport or applying for the first time, check out the US Department of State’s website at https://travel.state.gov/content/passports/en/passports.html

The US government suggests that if you are eligible to renew by mail, that is the best way. Adults who reside in the US must apply to renew their passport by mail.

WHAT TO DO IF YOU ARE ARRESTED BY ICE. Part One. 

by Christopher Kerosky, Esq.

ICE has promised to target California for raids on undocumented immigrants.  It is important that people know they have the right to defend their deportation in court.  In many cases, it can result in an immigration judge deciding that the immigrant can stay in this country and even obtain permanent residence. 

I have written a series of articles about what an immigrant can do if they or their family member is arrested and put into deportation proceedings.  This is Part 1; it covers what to do after you are taken into custody by ICE, how to get out of custody and how to defend your deportation in court. 

The Important Things to Know if you or your family member is taken by ICE.

Many people believe that if they are undocumented and arrested, then they have no choice but to go home.  That is simply not the case.  With skillful and thoughtful representation, many undocumented immigrants can successfully avoid deportation.

It is very important that undocumented immigrants and their families know what to do in this situation.  The important thing is not to sign any document which agrees to your deportation or voluntary departure.  Instead, get legal advice and it is very often the case that you can get bonded out of custody very soon.

How does one get a family member out of ICE custody once they’ve been taken? The answer to this question depends upon the situation.  The government is required to hold non-citizens in jail if they were convicted of certain very serious criminal charges.  If he was not convicted of any crime or if it was a misdemeanor crime, then usually the person can be “bonded” out of jail if the bond set by the court is paid.  The amount of the bond varies significantly depending upon the judge and the facts of the case.  The best thing is to get your relative out of jail, if you can, and then hire a lawyer to protect his rights in court. 

Even if the relative is bonded out of jail, he will be required to go to immigration court and explain to the judge will he should not be deported.  If you ignore the court case once he is bonded out, a deportation order will be issued by the court, the bond money will be lost, and he will probably lose any chance of ever becoming legal in the United States.

It is often possible to proceed with a claim for relief in court, such as cancellation of removal, asylum, adjustment of status, or other claims.  These arguments apply in many situations where the undocumented person arrested has family here legally or has been a victim of a crime, or a victim of domestic violence, or can prove that he would be harmed if he is returned to his home country. 

These will be covered in subsequent segments of this series.

NEW COURT DECISION ON DACA. WHAT DOES IT MEAN FOR DACA RECIPIENTS?

This week, another federal court told the Trump Administration it acted without legal basis when it closed down DACA.  In this case, the ruling of the federal judge, if it stands, will require the U.S. Department of Homeland Security (DHS) to re-open DACA to new applicants, in addition to renewing status for current DACA holders.

What does this newest court decision mean for those with DACA now or those who would be eligible?  Here's some background on where DACA stands now and a brief explanation of how this decision will change things:

On September 5, Donald Trump announced the rescission of the DACA program.  Those who have DACA status were to begin to lose their status on March 5^th, but a San Francisco judge ordered the government to continue renewals.  The Administration asked the U.S. Supreme Court to expedite its review of the ruling but the Supreme Court refused.  Another judge in New York followed this with a similar ruling against Trump.

This week a third federal judge, Hon. John Bates, based in Washington DC, ruled that Trump failed to provide a reasonable rationale for closing the DACA program.  In addition to ordering DHS to continue renewals, Judge Bates also required it to accept new applications again.  But the judge did give the Trump Administration a chance to provide a different rationale for terminating DACA, suspending his decision for 90 days.

This decision means if the administration fails to provide an acceptable basis for ending DACA in the next 3 months, the USCIS will need to begin accepting new applications as early as August.  Presumably this will include two groups of young immigrants: (1) those who were eligible to apply before, but failed to do so; and (2) those who turn 15 years old and are thus newly eligible.

Those who do not have DACA but who would be eligible to apply under this new ruling should stay tuned for updates on this case and if this ruling stands, apply for DACA as soon as permitted.

USCIS ACCEPTING DACA RENEWALS AGAIN. WHO CAN APPLY AND WHEN?

The U.S. Citizenship and Immigration Service (USCIS) announced on Saturday January 13^th that DACA renewal applications are now being accepted in response to the federal court order last week requiring them to do so.

The notice from USCIS reads:

Due to a federal court order, USCIS has resumed accepting requests to renew a grant of deferred action under DACA.  Until further notice, and unless otherwise provided in this guidance, the DACA policy will be operated on the terms in place before it was rescinded on Sept. 5, 2017. 

What this means is that persons who were previously granted deferred action under DACA may request renewal.  They do so by filing Form I-821D (PDF), Form I-765 (PDF), and Form I-765 Worksheet (PDF), with the appropriate fee.

While the announcement is not entirely clear on this, it appears that those who have DACA now can file for a renewal if their application expires less than 150 days from now.  It’s not clear whether USCIS will accept renewal applications from those whose DACA expires more than 150 days from now.  See FAQs from the National Immigrant Law Center.  https://www.nilc.org/issues/daca/faq-uscis-accepting-daca-renewal-applications/

Those who previously received DACA but their DACA expired after September 5, 2016 can also file a DACA request as a renewal request.  However, persons whose DACA expired before September 5, 2016, cannot renew under this announcement.  

No Right to Travel.

USCIS will not accept or approve requests for permission to travel outside the country known as “advance parole”, which was previously available to DACA recipients. No one with DACA should travel outside the U.S., unless there’s a future change in the law.

No New Applications.

USCIS is not accepting requests from individuals who have never before been granted deferred action under DACA.  This bars from relief those who have turned 15 years old since September 5, 2017 and would have been eligible had the original DACA Executive Order remained in place.  It also bars those who never applied earlier for other reasons.

Response to Judge’s order

The Trump Administration took this action because it was required by Hon. William Alsup, a federal judge in San Francisco.  Judge Alsup’s order on January 9^th ruled that Trump’s decision to cancel DACA may have been improper and temporarily required the Administration to continue to renew DACA for those who had that status.  It is likely the Trump Administration will appeal the order to the Ninth Circuit and, if necessary, to the U.S. Supreme Court.  One of those courts could rescind Judge Alsup’s order and that would likely result in USCIS closing down DACA completely again.  Also, this order is merely a preliminary injunction and so further proceedings in the District Court may result in the order being lifted.

Who Should Apply?

Persons whose DACA expires in the next five months would be wise to apply to renew their status. Likewise, persons should apply who allowed their status to lapse after September 5, 2016 and were barred from re-applying by the Trump Administration’s cancellation of DACA.

The passage of Congressional legislation such as the DREAM Act of 2017 would be far preferable to the status quo as it would provide deportation relief to far more people on a legislative basis and create a path to permanent residence.  For a summary of that bill, go to: https://www.congress.gov/bill/115th-congress/senate-bill/1615.

WARNING: The foregoing is an article discussing legal issues. It is not intended to be a substitute for legal advice. We recommend that you get competent legal advice specific to your case.

VISA OPTIONS IF YOU’RE TOO LATE FOR AN H1B VISA .

As predicted, within days, the visa quota for the H1b professional visa was used up in April this year. The U.S. Citizenship and Immigration Service (USCIS) announced this week that it has reached the congressionally-mandated 65,000 H-1B visa cap for fiscal year 2019. USCIS has also received a sufficient number of H-1B petitions to meet the 20,000 visa U.S. advanced degree exemption, known as the master’s cap. 

So what are your options if you or your employee have gotten your H1b application in time?  What if you are not eligible for an H1b visa?

This article will provide an overview of these non-immigrant visas in the U.S. based upon employment or business purposes.  Some of these options surely will not apply; but perhaps there is one or more that can provide a short-term or long-term option for you or your employee.

F-1 visa: Student visa.  Visa for an unspecified period of time while the student is enrolled full-time in an approved program of study.  This may be a good option if you were a student before applying for the H1b and you can extend your study or go back to school.  It usually is an expensive solution as you need to study full-time and pay international student tuition.  Generally, you cannot work with this visa.

J-1 visa: Training visa.  Visa for up to 18 months while the person is enrolled in an approved program of training for a specific company.   This can be a good option for persons having completed college recently.  You obtain a work permit, but it is supposed to be “on-the-job” training only.

         B-1 visa: Business visa.  Available to persons doing business in the U.S.  It is usually valid for six months or less, but may be extended in the U.S. by simple application to the CIS.  This can be a possibility to extend your time here in order to search for business partners and contacts, as long as you adhere to the visa terms: no working, visa ends in six months or less. 

B-2 visa: Tourist visa.  It is usually valid for six months or less, but may be extended in the U.S. by application to the CIS.  This can provide a short-term solution, allowing the foreign national to stay a few months longer before returning home for touristic reasons.  Filing the extension application automatically extends one’s legal stay in the U.S. until a decision is reached.

L-1 visa: Intra-company transferee.  This is a good option for foreign nationals employed by a multi-national company doing business here.  A visa for an executive or person with specialized knowledge, sponsored by a company abroad with a related company here.  The first visa is valid for 1 year , but may be extended up to 7 years.  It provides the right to work for the sponsoring company.  Does not require that the applicant have a degree.

E visa: Treaty trader or investor visa.  This is a good option if you happen to have a “substantial” amount of money to invest in the U.S. and want to start a business here.  Requires a treaty with the country of origin of the applicant and substantial investment in the U.S. or trade with the U.S.

R-1 visa: Religious worker.  A visa for persons sponsored by a religious institution, valid for 2 years but may be extended.  A very good alternative for persons offered work by a church, synagogue, school or other religious institution.

O/P visa: Artist or entertainer.  A visa allowing artists, entertainers or athletes to stay in the U.S. for the purpose of specific performances for a specific limited period.  The government requires that they document their “outstanding” qualifications and “international acclaim”.   The standards are quite high.

Every person’s unique case must be evaluated specifically to determine which non-immigrant visa might offer the best chances for extending their legal status here.  These categories are not broad and the options are limited, but in many cases, one may find a solution if their H1b visa dreams were unfulfilled this year.

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CHRISTOPHER A. KEROSKY is a partner with Wilson Purves in the law firm of KEROSKY PURVES & BOGUE, with offices located in San Francisco, Santa Rosa, Ukiah, Napa, Walnut Creek, San Jose and Sacramento.  Mr. Kerosky has been an attorney licensed to practice law in California for 25 years.  He is a graduate of UC Berkeley (Boalt Hall) School of Law and a former trial lawyer for the Civil Division of the U.S. Department of Justice in Washington D.C.  For 8 years, he has been honored as one of Northern California’s top lawyers by San Francisco Magazine, “Super Lawyers” edition.  Mr. Kerosky speaks English, Spanish and Polish and has also working knowledge of Russian.

WARNING: The article above is not intended to be a substitute for legal advice. We recommend that you get competent legal advice specific to your case.