Canada Immigration and Citizenship News

B. Trade Dependents (TD).

  Under CFTA, a TC dependent was admitted as a B-2 visitor.  Under NAFTA, a brand new classification for TN dependents, TD, was unveiled. For Canadian citizens, the TD is issued at the POE simultaneously with the processing of the principal TN application.  For Mexican nationals, the TD must apply for a visa at a U.S. consular post just like the principal TN.

 C. Strike Provisions.

  Another measure designed to protect U.S. labor is the introduction of strike provision clauses allowing each party to refuse to issue status authorization to NAFTA business persons in cases where the temporary entry of that person may adversely affect the settlement of any labor dispute.

 D. Self Employment Prohibition.

  Yet another protective provision introduced in NAFTA is the prohibition of self employment.  While not necessarily targeting Mexico, the U.S. delegation wanted to prevent signatory citizens from having the ability to come and establish businesses that would essentially be self-employed situations.  This is consistent with the general philosophy of the United States, which is highlighted in the discussion of the E visa, infra, to limitinvestment opportunities that do not create jobs for Americans.

  E. Dual Intent.

  A significant change in methodology under NAFTA was the introduction of the concept of "dual intent" by subjecting TN applicants to the presumption contained in Section 214(b) of the Immigration and Nationality Act (INA).  This presumption imposes a burden on every applicant to demonstrate that his or her entry is temporary and not for the purpose of establishing permanent residence.

  Under CFTA, TC renewals were clearly indefinite. Under NAFTA, TN renewals must now be examined in light of the Section 214(b) limitation and may be limitless only in theory.

 III. Immigration Options Under the NAFTA

  The INA defines an alien as "any person not a citizen or national of the United States."  Again, most aliens who enter the United States are presumed to be intending immigrants; that is, persons who intend to work and reside in the United States on a permanent basis.  This presumption applies unless an alien falls within one of the numerous temporary, nonimmigrant categories set forth under the immigration laws, including the NAFTA. The remainder of this article will focus on the methods by which Canadian citizens may enter the United States as nonimmigrants under the NAFTA.

 A. Business Visitors: The "Killer Bs"

  A great percentage of aliens are admitted to the United States each year as B-1 business visitors in order to perform various temporary business activities.  By all accounts, the B-1 seems like an attractive option for eligible foreign nationals. The government does not place an annual cap on the number of business visitors allowed to enter the United States and there is no requirement to obtain advance permission to work because B-1s are theoretically not coming here to join the U.S. work force.  In addition, under the NAFTA, a Canadian may have a B-1 application processed at the POE and,  if successful, enter the United States under B-1 status that same day with permission to enter multiple times for up to a one year period.

  Unfortunately, looks can be deceiving. The B-1 is among the most elusive  nonimmigrant classifications offered under both the INA and the NAFTA. Neither the INA nor the NAFTA provide adequate definitions and guidelines to assist immigration inspectors when faced with an application from a prospective B-1. This widespread uncertainty and inconsistency surrounding the success of a B-1 applicant justifies the "Killer Bs" moniker.

Next Page