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  1. Options for Canadians to apply for the TN Visa at the Mexican Border Crossing


    As many of our readers know, Chapter 16 of NAFTA (Temporary Entry of Business Persons) provides for the simplified and expeditious temporary entry of businesspersons who are citizens of one country to go into the territory of another. It contains the reciprocal commitments of the United States, Mexico, and Canada to facilitate the temporary entry of businesspersons from one of the three countries. It grants temporary entry to four categories of businesspersons: (1) business visitors (admitted as B-1s); (2) traders and investors (admitted as E-1s and E-2s); (3) intracompany transferees (admitted as L-1s); and (4) professionals (admitted as TNs).
    It is important to note that although businesspersons who are citizens of Mexico are entitled to the benefits of NAFTA, they do not have the ease of access to the United States as do citizens of Canada. Canadians can apply for the TN work visa directly at the port of entry from Canada to the USA. Many Canadians are not aware that they can apply for the TN visa on at any Mexican-American port of entry as well.
    So how does it work, key requirements?
    Canadian Citizenship
    Present evidence of Canadian citizenship: birth certificate or passport. Even an expired passport is sufficient to establish citizenship, but an admission stamp will not be placed in an expired passport. Note that Canadian citizens are visa-exempt (with the exception of E-l/E-2) and are likewise passport-exempt for the time being.
    The Applicant Must Not Be Otherwise Inadmissible
    It is essential to ascertain in advance that you are not subject to any grounds of inadmissibility. It should be emphasized that Canadian pardons do not relieve Canadians of the U.S. immigration consequences of Canadian criminal convictions. Advance prep work regarding any prior criminal history is imperative to avoid embarrassment at the time of application and to allow time to submit a nonimmigrant waiver application (Form I-192) when required.
    Past arrest and criminal court records are much more accessible these days. We have encountered many Canadian professionals who have been left stunned at the border after being questioned about a conviction that may have occurred more than 20 years ago and has never come up in the applications process before. In addition to any criminal issues, it is also imperative to determine whether you have previously violated U.S. immigration laws. For example, unlawful presence or past fraudulent behavior may trigger a bar to admissibility.
    The Correct Filing Fee
    The fee for a Trade NAFTA (TN) visa at the POE is $50, There is no formal filing fee for dependents, but there is a $6 fee for each I-94 issued at a POE/PFI.
    Who Will Adjudicate your at the Border?
    At one time, POE/PFIs had designated free trade officers (FTOs) to exclusively adjudicate free trade applications. However, since 1999, immigration inspectors have had the authority to adjudicate applications.
    It is key, especially in complicated cases, to check in advance with the FTO or the most experienced inspector to find out his or her schedule. FTOs are generally more knowledgeable about category requirements and the acceptable evidence for each category than a non-specialist inspector. Your lawyer can sometimes call the POE/PFI in advance for this information. Many immigration inspectors will speak to your lawyer over the phone to provide helpful information that applies to your case. While the inspectors will never provide advance adjudication, it never hurts to check with them to help identify issues that may raise concerns or problems before presenting the application.
    Example from the San Ysidro port of Entry, Tijuana Border Crossing
    Take Highway 5 South to San Ysidro. San Ysidro is a community in the city of San Diego, California. It is located in the southernmost part of San Diego County, California, immediately north of the Border Crossing. Make sure you exit the Freeway at the last U.S.A. stop!!! Then make a left turn, and then a right turn to find parking.
    It is best to park near the Trolley Stop, at the parking lot just North of the "Jack In the Box". Next, Walk across the Border. Once you arrive on the mexican side in Mexico, near the taxis, you need to go across the bridge to your left. Get in line to cross back through the gates, which is the U.S. side.
    You must show your Canadian passport and other I.D. (like H1b) to cross back to the U.S.side. Once inside go to the building on the right which is for Permits. You need to wait in line there before being allowed to enter the building. Once inside the building you need to check in at the counter with the immigration officer. Then you will be asked to wait, until they have time to review the TN documents. Next they will go over the paper work with you.
    Once your TN is approved, you will go to the cashier window, pay $50 for the TN and $6 for the I-94. Keep your receipt!
    After departing the permit building, get into the line on your right heading back into the U.S. Once, you get to the front of the line, you will be asked by an immigration officer to show your entry documents (passport and TN), and your receipt that you paid.
    Lastly, proceed to the outside (any bags, or backpacks, purses, need to go through the x-ray machine). After, you are outside, proceed to your car, and take highway 5 north."
    Do you need an attorney with you?
    Attorney presence at the port of entry with you is very important. No attorney at application process can lead to dire consequences, especially when a less experienced officer is involved. The attorney can find out when the FTO or most experienced officers are on duty and, if there is a denial assist in the withdrawal or refiling process promptly. We have established a very successful interview escort process for our clients and feel that this service has become a important factor in case approval for Canadians applying at the Mexican Border. Email me for further info.
  2. Hospitality Immigration - Birth Tourism, is it really happening?


    Birth Tourism is a hot topic right now. How do I know? Reporters keep calling me as well as other prominent Immigration Lawyers, asking about this topic with great interest.
    The latest story was covered by the daily. The Daily is new type of media exclusively created for the ipad and provides cutting edge news with amazing content delivery. You have to try it to appreciate.
    The latest story that I was part of is about Mothers coming to America to give birth. Millions of foreign tourists visit the United States every year, and a growing number return home with a brand new U.S. citizen in tow.

    Every year millions of foreign tourists visit the United States, and a growing number return home, after having given birth to a new baby. Eight percent of all babies born in the U.S. in 2008 were to illegal immigrant parents, according to a groundbreaking analysis of U.S. Census Bureau data by the Pew Hispanic Center. All of those children are U.S. citizens while their parents remain undocumented.
    Thousands of legal immigrants, who do not permanently reside in the United States but give birth here, have given their children the gift of citizenship, which the U.S. grants to anyone born on its soil.
    The number of U.S. births to non-resident mothers rose 53 percent between 2000 and 2010, according to the most recent data from the National Center for Health Statistics. Total births rose 5 percent in the same period. Among the foreigners who have given birth here, including international travelers passing through and foreign students studying at U.S. universities, are "birth tourists," women who travel to the United States with the explicit purpose of obtaining citizenship for their child.
    Catering to the women is a nascent industry of travel agencies and hotel chains seeking to profit from the business.
    Is this just a trend or a growing reality, share your thoughts with us.
    Read our commentary at the daily.com
  3. Your best friend calls you and tells you he/she's really sick? How do you show you care?



    A former client of mine returned to Japan a couple of years ago after having spent a relatively brief time in immigration detention in the US. The person began a new life by getting married in Japan, and the couple started a successful business. Everything seemed to be going well.



    The only problem was that the city where they had chosen to live happened to be located near the center of the March 11 earthquake. The city was not seriously damaged by the tsunami, but there was widespread devastation from the quake.



    Fortunately, the person was able to contact me by email soon after the quake. It turned out that the couple were unhurt and there was only minor damage to their home, but there was widespread death and destruction all around them, with little or no food, water or electricity.



    The only experience worse than the earthquake, the former client also mentioned, was the experience of having been in immigration detention.


    TypePad Conversations » Answer this question!
  4. H2B Visas - Unemployment rate not helping hotels fill positions


    Hotel News Now, a leading Global Hospitality publication, ran a two-part series about staffing challenges facing the U.S. hotel industry. I was honored to be interviewed by the publication and share my insights on the problems facing hospitality employer in these challenging times.
    With the level of unemployment about 8.5 percent, why do hotels still need foreign workers? There are various reasons, from location to the attitudes of American workers. And changes in schedules and lifestyle have affected one of the former staples of summer work--students.
    The situation is bad for staffing professionals in the industry, said Jacob Sapochnick, a San Diego, California-based lawyer whose practice is devoted to immigration law.
    "Even though they can hire local people, they can never rely on them for the full term," he said. "If you have a large hotel, need 50 housekeepers and hire locally, the turnover is very high. They find a better job or one that pays more. When you have H-2B workers, they know they have them for 10 months. Their visa depends on them working at that hotel."
    The more turnover, the less likely the hotel will function properly, Sapochnick said.

    The second article in the series titled, Changes make H-2B visa program more challenging for hotels, click to read both articles
  5. Hospitality Immigration - What is the H3 Visa?

    We are happy to join the ILW family of Blogs. This is our first post and we will focusing on Hospitality Immigration among other topics. Hope you will benefit.
    In this Bog article we discuss the very unfamiliar area of H3 visas for the Hospitality Industry. The very talented attorney Kate Powell from our office has been very successful in crafting and getting approved numerous such cases, and her summary is presented below.
    The H-3 nonimmigrant visa category is available for aliens coming temporarily to the United States as either a:
    o Trainee to receive training, other than graduate or medical education training, that is not available in the alien's home country or
    o Special Education Exchange Visitor to participate in a special education exchange visitor training program for children with physical, mental, or emotional disabilities.
    This article will cover only H-3 trainee visas. H-3 training may be in a variety of fields, including commerce, communications, finance, government, transportation, agriculture, etc. Our office has been successful in obtaining H-3 visas for numerous hospitality trainees to receive hospitality related training at the hotels in the U.S.
    Training purpose. The heart of an H-3 petition is the explanation for conducting the training in the United States. The petition should describe how the U.S. company is benefited by providing the training, the career abroad for which the training will prepare the foreign national, and the reason why the training cannot be obtained in the foreign national's home country. The training program should be related to the petitioner's business and cannot be for workers who already possess "substantial training and expertise" in the area of training.
    The petitioner must establish its ability to provide the training, and the training program itself must not be available in the foreign national's own country. In addition, the training cannot be in a field unlikely to be used outside the United States, or the primary purpose of which is to eventually staff the domestic operations of the U.S. company. This classification is not intended for employment within the United States. The petitioner must establish that the beneficiary will not engage in productive employment unless such employment is incidental and necessary to the training. It is designed to provide an alien with job related training for work that will ultimately be performed in the alien's home country.
    Therefore, it is very important to show that the trainee has no intention of abandoning his or her foreign residence and will return to his or her home country upon completion of the training program.
    Training program. In order to obtain H-3 classification, the petitioner must describe the training program in detail. The description must include the nature of the training, the type of supervision, the proportion of time, if any, that will be devoted to productive employment, the number of hours in classroom instruction and/or on-the-job training, and an itinerary if the training will be in more than one location. The training program that deals in generalities with no fixed schedule, objectives, or means of evaluation will not be approved.
    Practice shows that training programs will be approved if they are described carefully and specifically, and if the petitioner demonstrates some benefit to the U.S. company providing the training.
    Advantages of H-3 category
    1) Eligibility for H-3 status is not based on advanced education. Unlike nonimmigrant work visas, absence of the degree in the field of training is actually beneficial for H-3 classification. The regulations require that the alien does not possess substantial training in the proposed field of training.
    2) There are no numerical limits on the number of H-3 petitions granted each year. H-3 may be a good option for an alien who wants to stay in the U.S. and eventually apply for H-1B, but the number of H-1B visas allotted for the fiscal year has run out and the alien has to wait until the visas become available. In that case, the alien might want to receive H-3 training and then switch to H-1B in the future. If this is the case, the adjudicator might later request evidence that the alien has intent to go back to his or her home country after completion of the temporary employment in the U.S. This is because anytime you apply for a nonimmigrant visa the adjudicating officer has a presumption that you have the intent to immigrate. Therefore, the burden is on you to show that you have sufficient ties with your home country, such as relatives, property, offer of employment upon your return, etc.
    3) Sometimes it may be beneficial to obtain H-3 training visa rather than J-1 training visa. Certain J-1trainees are subject to a two-year home residency requirement that requires that they return to their home country before they can acquire H or L visa status or permanent residency. The H-3category does not have such a requirement, and there are no specific rules excluding any particular occupations--unlike the J-1 training category, which has numerous occupational exclusions.
    Limitations on extensions. If the H-3 petition is approved, you may be allowed to remain in the United States for up to 2 years. However, we advise our clients to complete the training program before the expiration of 2 years. An H-3 foreign national trainee who has completed two years of training may not have his or her status extended or changed or be readmitted to the United States with another H or L visa unless he or she has resided outside the United States for at least six months. In order to avoid that, we recommend our clients to change their status before completing full two years of training. In that case, the alien does not have to remain outside the U.S. for 6 months.
    In case H-3 visa is denied, there are ways to challenge the denial. Our office has been successful in securing an H-3 visa even after the denial was issued.
    H-3 training visa may be used to provide a nonimmigrant solution for training in a variety of industries, and, thus, can be a valuable tool in meeting the goals of U.S. employers and foreign nationals seeking training in the United States. The circumstances of each case must be evaluated to determine which would be more appropriate and advantageous to your particular case, taking into consideration many of the factors discussed above. If you are interested in your eligibility for H-3 visa, contact our office for additional information.
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