Arizona’s Recent Immigration Legislation Highlights Need For Nationwide Comprehensive Immigration Reform

bigstock-Citizenship-documents-43205116In the absence of national-level immigration reform, Arizona has passed its own version. Unfortunately, it is not the type of immigration reform that most in the immigration community would appreciate. Specifically, Arizona’s new law requires foreign nationals to carry their immigration documents at all times and allows law enforcement to question any individual suspected of being in the U.S. illegally. Aside from the obvious problems of racial profiling and discrimination, laws such as this one continue to fracture an already cracked immigration system. This law will also, as many in the law enforcement community have pointed out, impede law enforcement’s efforts. Not only will this monopolize police time with questioning individuals “suspected” of being an illegal immigrant, but individuals who have witnessed crimes may not be willing to come forward if they fear being deported.
Arizona’s recent immigration law demonstrates why nationwide, comprehensive immigration reform is so desperately needed in this country. If not for the benefit of the foreign nationals whom have waited so patiently for a better system, then to prevent radical legislation like that passed in Arizona. Immigration is a federal issue under the constitution. By allowing individual States to dictate immigration reform, the system is going to become even more inconsistent and piecemeal. Arizona’s recent legislation should send a clear message to Congress that it needs to regulate this area of the law and it must act promptly. If not, each State will take it upon itself to pass its own version of immigration reform, as Arizona has done. Clearly, other States will be inspired to introduce similar legislation or perhaps even worse.

Interestingly, Janet Napolitano, Homeland Security Secretary, preceded Jan Brewer as Governor of Arizona and vetoed several comparable bills that were placed on her desk for signature. Many different civil rights and immigration groups have staunchly opposed the bill, and the Mexican Government has even voiced its criticisms of the bill. Various groups have also vowed to challenge the law on constitutional grounds if signed into law by Governor Brewer. One can only hope that Governor Brewer realizes this law would do much more harm than good — socially, politically and economically — and veto the bill. The Governor has not made her position known and has another day to veto or sign the bill. Undoubtedly, the country, and perhaps other countries, will be watching closely to see what the Governor’s decision will be.

Work Visa Options For Canadian Professionals: L Visas

bigstock-Immigration-3151682For Canadian professionals who qualify, the L visa combines the faster processing of the TN visa with the path to permanent residency provided by the H-1B. As with the TN visa, a Canadian professional can apply for an L visa at a U.S. port of entry. This makes the application process faster than applying for other nonimmigrant employment classifications, such as the H-1B, that must be processed through a USCIS Service Center. Moreover, Canadian professionals working in a managerial or executive capacity do not usually need a labor certification to begin the green card process, which can also significantly expedite the permanent resident process. These benefits make the L visa an attractive option for Canadian professionals, especially those seeking permanent residence in the United States.

The L visa is available for intracompany transferees in either specialized knowledge positions or executive or managerial positions. The intracompany transferee must have worked abroad with a parent, affiliate, subsidiary, or branch of the U.S. employer for one continuous year out of the preceding three years. Interestingly, time spent by the Canadian professional in the United States in lawful status for business or pleasure will not interrupt the continuity of employment abroad; however, such periods will not be counted towards the accrual of one year employment abroad. To qualify as a specialized knowledge individual, the Canadian professional must have special knowledge or expertise regarding their employer’s product, service, research, equipment, techniques, management, processes or procedures. A specialized knowledge employee is eligible to hold L status for a maximum of 5 years.

A Canadian intracompany transferee may also work in a managerial or executive capacity. Though it may seem obvious, the primary criteria for a managerial position is that the employee manage the company or a part of the company. The employee’s duties should involve supervising the work of other professional or managerial employees and/or managing an essential function or operation within the company. It is important to note that a first line supervisor does not typically qualify as a manager for L purposes.

A Canadian professional that is seeking L status as an executive must establish their proposed U.S. position is one of executive capacity. An executive is an employee who directs the management of the company or a subsection of the company. This differs from a manager in that an executive sets the overarching goals and policies of the company or a subsection, whereas a manager oversees the day-to-day operations of the company. An employee in an executive capacity should have wide spread discretion in decision-making and receive very little supervision. A Canadian professional in a managerial or executive capacity is eligible for L status for a maximum of 7 years. Any time a Canadian professional has previously spent in H-1B status, without leaving the U.S. for a minimum of one year, will be counted against the time the Canadian professional is eligible for L status.

For Canadian professionals considering an L visa, it is advisable to speak with a knowledgeable immigration attorney. Qualified immigration counsel can help any Canadian professional answer difficult questions, such as whether they are a specialized knowledge or executive/managerial employee, whether their employer abroad has the requisite relationship with the U.S. employer and whether they have accrued enough time working abroad. The L classification is a great work visa option for those Canadian professionals who qualify, but the eligibility criteria can be complex and a Canadian professional should always be sure they meet the qualifications before applying.

TN Visa Options For Canadian Professionals

bigstock-Citizenship-documents-43205116Ironically, Canadian professionals have many work “visa” options, even though Canadians for the most part are visa-exempt due to the special relationship between Canada and the U.S. Despite not needing an actual visa in many instances to enter the United States, Canadian professionals must still qualify for an employment classification to work in the U.S. One of the most popular employment classifications for Canadian professionals is the TN visa. The TN is especially attractive because there is no limit to the number issued each year, the processing times are significantly faster when applying at a port of entry, and it can be renewed indefinitely. However, Canadian professionals should understand and appreciate the benefits, as well as the limitations, of TN status before determining if it is an appropriate classification for their situation. One important characteristic of TN status is that it does not allow for dual intent. Thus, a Canadian professional seeking U.S. permanent residence would want to seriously consider the fact that TN status does not lead to a green card.

The TN classification is an immigration benefit provided by the North American Free Trade Agreement (NAFTA), a treaty between the United States, Canada and Mexico. In addition to being a Canadian or Mexican citizen, to qualify for TN status one must work in a NAFTA-approved profession and possess the requisite qualifications. There are over 60 professions designated as TN eligible under NAFTA, such as Computer Systems Analyst, Engineer, Research Assistant, Pharmacist, Psychologist, Veterinarian, Plant Breeder, and University Professor just to name a few. The education/experience requirements for each NAFTA profession are also outlined in the agreement. For example, to work as a Computer Systems Analyst one must have a Baccalaureate or Licenciatura Degree, or a Post-Secondary Diploma/Certificate and three years of experience.

The initial TN application has to be completed at a port of entry with the Canadian professional in attendance. As previously mentioned, it is incumbent upon the applicant to not only prove they will be working in a NAFTA profession, but also establish that they possess the requisite education/experience for the profession. The applicant should bring a letter from their prospective employer describing the NAFTA-approved profession in which they will be employed. Moreover, the TN applicant should bring original employment letters, diplomas and transcripts as evidence of their education and experience. Although it may seem obvious, a TN applicant should also have proof of their Canadian (or Mexican) citizenship.

After the initial TN application at a port of entry, TN holders are generally permitted to renew their status through a United States Citizenship and Immigration Services (USCIS) Service Center. However, the filing fees and processing times for an application through the Service Center are both higher than through the port of entry. While TN status has many advantages for Canadian professionals, it may not always be the appropriate visa category, especially for foreign nationals seeking permanent residence in the United States. It is important for Canadian professionals to review and understand all of their visa options to ensure their immigration goals are being met. Canadian professionals who have questions regarding which visa is most appropriate for their circumstances should consult with an experienced immigration attorney.

What to Expect in a Fiancé or Marriage Visa Interview at the Embassy

bigstock-Passports-31148For Fiancé and Marriage visa applicants, the interview at the Embassy can be the most stressful part of the process. The interview is also, arguably, the most important part of the process and, thus, it is important for applicants to be prepared. Though one might expect the application process to be somewhat standardized, each U.S. Embassy has different policies and procedures governing how visa applications are processed. Therefore, it is imperative for the visa applicant to research the Embassy they will be visiting in order to adequately prepare for the interview. It is highly advisable for any visa applicant to review the website of the Embassy they will be visiting for information on the specific policies and procedures of that Embassy. A Fiancé or Marriage visa applicant’s interview will be scheduled at the Embassy with jurisdiction over their residence abroad.

Visa interviews are conducted by appointment only and it is vital that the applicant be on time for the interview. There is usually some form of security screening at the Embassy and applicants should allow time for security when planning their visit. Generally, after entering the Embassy, the applicant will check-in with a Consular Official and may be required to provide their visa application(s)/documentation for review. Upon checking-in, the visa applicant will usually be told to remain in the waiting area until their name/number is called. At some point, the visa applicant will be asked to complete a digital fingerprint scan. The applicant’s documents , if previously collected, will be returned prior to meeting with the Consular Officer.

Once the applicant’s name/number has been called, they will proceed to their interview with the Consular Officer. The Consular Officer’s primary purpose is to determine the validity of the relationship underlying the Fiancé or Marriage visa application. Therefore, the Consular Officer will review the documentation provided by the applicant and ask questions pertaining to the applicant’s relationship with their U.S. Fiancé or spouse. Depending upon the Embassy and the type of visa application, the U.S. fiancé/spouse’s presence may or may not be requested at the interview. The questions asked during a Fiancé or Marriage visa interview are are selected at the discretion of the Consular Officer and usually not the same during each interview. Most of the questions, though, will be geared towards ascertaining the validity of the foreign national and U.S. Citizen/permanent resident’s relationship. A few examples of the types of questions an interviewee may be asked include:

  • What is your fiancé/spouse’s favorite hobby?
  • Where are (or did) you get married?
  • When and where did you meet your fiancé/spouse?
  • Do you and your fiancé/spouse currently live together?
  • What time does your fiancé/spouse get up each morning and what time does he/she return home each night?

The amount of time an interview will last can vary greatly. As most Embassies conduct hundreds of visa application interviews each day, the length of the interview may be just a few minutes. However, some interviews will last longer than others for a variety of reasons. Once the actual interview has concluded, the visa applicant will be notified if they are eligible for a visa. If the applicant has qualified for a visa, they will leave their passport at the Embassy in order for the visa to be affixed. The passport is then returned to the applicant via courier or mail.

The Fiancé or Marriage visa interview at the U.S. Embassy can be intimidating, especially for foreign nationals who do not know what to expect. The fact that each Embassy has unique processes and procedures for processing visa applications does not help matters. However, a Fiancé or Marriage visa applicant can research the Embassy which they will be visiting and commonly obtain a plethora of Embassy-specific information just by visiting the Embassy’s website. Knowing the particular policies, procedures and documents required by the Embassy designated for the interview can go a long way towards calming one’s nerves prior to a Fiancé or Marriage visa interview