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Monday, January 11, 2016

NAFTA TN Visas for Canadians and Mexicans

Interesting question that I don't usually field. A fella asked about TN visas in a legal request board. I thought I would include his question, and my answer, here:

I am a Canadian citizen currently in the US on a TN Visa. I have been approached by an Indian software company to conduct business development, sales activities on their behalf. I am wondering if I am legally allowed to do this on a TN visa. Also i want to set up my own business can I do so, and and what is the criteria for doing this.

TN's are designed for NAFTA countries (primarily Canada, it seems...but it could be because I, too, am in DC, so we see a lot more Canadian TN's than from Mexico). It allows professionals from NAFTA countries to freely work and conduct their trade, on a temporary basis, in any NAFTA country. At least, that was the idea. In reality, it acts like a defacto H visa. Generally, to come over here on a TN, you need to have a sponsoring employer. So...who sponsored you? What happened?

Generally, the requirements for TN are:
  • Applicant is a citizen of Canada or Mexico;
  • Profession is on the NAFTA list;
  • Position in the United States requires a NAFTA professional;
  • Applicant will work in a prearranged full-time or part-time job for an employer (see Required Documentation).
  • Self employment is not permitted;
  • Applicant has the qualifications, meeting the specific requirements, education, and/or experience, of the profession.


As a rule, a TN visa holder ought not to be looking to open a business in the US. Nothing against entrepreneurial spirit and all, but because TN's are by nature temporary, you open the door to all sorts of problems should your business happen to be successful (and don't fall into the boat of those that suggest you can bootstrap yourself -- that is, start a business then sponsor yourself for an E or H visa. Down that path leads to pain and creative lawyering). Note that you cannot sponsor yourself for a TN, either (see above list of criteria for TN visas). However, if you are here doing work for the company that brought you in via the TN visa, there is nothing to prevent you from owing an interest in a C corp. Tricky business though (no pun, of course), so talk to us first.

But...bottom line...can it be done? Absolutely! Can you work for another company when you entered on a TN for a different purpose? Sure..come speak with us and we can help. We're in Fairfax/DC, so it's not an issue to chat.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
2751 Prosperity Ave, Ste 150
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
Lili O'connell, Esq.
Charles Hatley, Esq.
1-800-579-9864 admin@hanoverlawpc.com

Wednesday, January 6, 2016

Determining Arriving Alien Status

How to determine if your client is an arriving alien -- or not!

First test: Was she stopped at the border?
Yes: Continue
No: Was she stopped with ~25 miles of the border within 10 days of when she arrived?
Yes: Continue
No: Arguably not arriving alien.


Second test: Is she a US citizen?
Yes: Interesting. If they are moving to revoke citizenship (i.e. not by birth), then you have a pickle. Arguably, not an arriving alien, as only a judge could revoke citizenship and a citizen cannot be an arriving alien. So most likely – not an arriving alien.
No: Continue


Third test: Was she granted conditional parole?
Yes: This is very narrow exception. Humanitarian or CBP approved “signed at the border” parole only. In this instance, she would not have been given a return date, and she would not have been placed in removal proceedings. A deferred inspection is not a parole for this purpose.
No: Continue


Fourth test: LPR?
Yes: Is there a petty exception that the CBP officer will accept? If so, get this kicked at the deferred inspection. If not, she is an arriving alien.
No: Arriving alien


If she is an arriving alien, hope her case get’s randomly transferred to York, PA. In York, the judges oftem grant bond even for arriving aliens (must have a legal place to go in the US, and someone willing to vouch for the alien). Otherwise, you are looking at no-bond initially.

How do I get bond for an arriving alien?
  1. York
  2. If there has been a credible fear determination (either through Court or through CBP), then you can ask ICE to grant a bond. ICE always has the right to grant bond. Talk to the DO (Deportation Officer – fella who is responsible for your client’s case on the ICE side) and request a bond. This usually only works on successful credible fear. If you have a pending asylum application and work permit, you should be able to get this unless your DO is being particularly ornery.


Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
2751 Prosperity Ave, Ste 150
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
Lili O'connell, Esq.
Charles Hatley, Esq.
1-800-579-9864 admin@hanoverlawpc.com