The North American Free Trade Agreement, better known as NAFTA, was implemented on January 1, 1994, to provide for freer movement of goods and businesspersons between the U.S., Canada and Mexico. NAFTA lists four separate non-immigrant business categories - B1 business visitors; E1/E2 treaty traders and investors; L-1 intracompany transferees; and TN (Trade NAFTA) Professionals. Each category encompasses different requirements and processing criteria. NAFTA is particularly beneficial to Canadian citizens. In most cases, Canadians can enjoy immediate adjudication of their NAFTA applications or petitions at a port-of-entry rather than having to wait several weeks or even months for the CIS Service Center to issue a decision. Canadians wishing to enter the U.S. to begin a new business or employment venture in the U.S. should never underestimate the benefits of NAFTA.
Unlaw Presence Alert
SRW has learned that the Toronto PFI (Pearson) port of entry is charging Canadian nationals with unlawful presence provisions even if an I-94 with a set expiration date was not previously provided.
Under section 212(a)(9)(B) of the Immigration and Nationality Act, noncitizens who were unlawfully present in the U.S. for more than 180 days, who departed the U.S. before any removal proceedings were commenced against them, and who then seek admission to the U.S. are inadmissible for a period of three years. Noncitizens who were unlawfully present in the U.S. for one year or more who leave the country and then seek admission to the U.S. are inadmissible for a ten-year periood.
CIS guidance reads that Canadians admitted as visitors without being issued an I-94 are not subject to unlawful presence provisions. SRW has learned, however, that Canadians have been charged with a 9B unlawful presence violation if the individual confirms the overstay in a sworn statement and CBP has documentation to determine the date of entry, date of departure and class of admission.
Any Canadian that has previously spent more than six months in the U.S. on any visit should conuslt with legal counsel before applying for another admission to the U.S.
If you have any questions on this issue, please contact SRW at 716-854-7525 or by e-mail at awilson@srwlawyers.com
TN Update - CIS Increases Period of Stay Provisions for TNs Under NAFTA
On October 14, 2008, CIS announced a final rule increasing the period of stay for TNs. The rule changes the initial period of admission for TN workers from one year to three years. The new rule also allows eligible TN nonimmigrants to be granted an extension of stay in increments of up to three years, as opposed to the current maximum of one year. TN nonimmigrants are not subject to a maximum period of stay and thus may seek multiple readmissions or extensions, provided their intended professional activity continues and they remain otherwise eligible. This new rule may make the TN category more appealing to Canadian and Mexican citizens, and in turn, open up more available H-1B numbers for other nationalities. See CIS Announcement and FAQs
CIS previously had announced that it was publishing a Notice of Proposed Rulemaking (NPRM) to increase the maximum amount of time a Trade-NAFTA (TN) professional worker from Canada or Mexico can remain in the U.S. before seeking readmission or obtaining an extension of stay. See Previous CIS Announcement and See Proposed Rule and DHS Regulatory Impact Analysis of Three Year TN.
Common Non-immigrant Categories for Canadians: