On February 4, 2011, United States President Barack Obama and Canada’s Prime Minister Stephen Harper issued Beyond the Border: A Shared Vision for Perimeter Security and Economic Competitiveness. This action plan proposes several immigration-related initiatives.

Background

The Perimeter Security and Economic competitiveness Action Plan was established on the basis of establishing a long-term partnership between Canada and the United States to secure our countries borders. The intent is not only to work together to secure the border but go beyond the border to secure and accelerate the legitimate flow of people, goods and services.

One of the priorities that this action plan sets out to achieve is to securely enforce the borders and to prevent threats before they arrive in Canada or the United States. The initiative programs help to identify individuals, at the earliest point possible, who intend to enter the perimeter for illegitimate purposes and who have committed serious crimes or violated immigration law in the other country. The purpose of the initiatives is developing and coordinating an efficient immigration and border system where both Canada and the United States have better access to information to enforce and administer their own laws. The three proposed imitative include:

• Common Approach to Screening;
• Shared Relevant Information to Improve Immigration and Border Determinations; and
• Sharing U.S.-Canada Entry and Exit Information.

Imitative 1 – Common Approach to Screening

Canada has agreed to implement two initiatives over the next four years: the Electronic Travel Authorization (ETA), to improve screening of all visa-exempt foreign nations, and Interactive Advance Passenger Information (IAPI) to make “board/no-board” decisions on all travelers flying to Canada prior to departure. These initiatives will mirror the following measures taken by the U.S.: Advance Passenger Information System which enables the Department of Homeland Security to collect information for international flights departing from or arriving in the U.S. and to compare this information to relevant watchlists prior to issuance of boarding pass and Electronic System for Travel Authorization, currently applied to foreign nationals.

Under Canada’s current immigration law, there are no mechanisms set in place to track the number of inadmissible persons denied permission to travel and the number of high-risk targets identified.

Proposed Plan 2 - Sharing Relevant Information to Improve Immigration and Border Determinations

The U.S. and Canada have agreed to the following:

Share risk assessment/targeting scenarios and enhance real-time notifications regarding the arrival of individuals on U.S. security watchlists;

Provide access to information on those who have been removed or who have been refused admission or a visa from either country, as well as those who have been removed from their respective countries for criminal reasons; and

Implement a systematic and automated biographic information sharing capability by 2013 and biometric information sharing capability by 2014 to reduce identity fraud and enhance screening decisions, and in support of other administrative and enforcement actions.

There are current data sharing mechanisms between U.S. Customs & Border Protection and the Canadian Border Services Agency but this action plan proposes greater sharing of information.

Proposed Plan 3 – Sharing U.S.-Canada Entry and Exit Information

Since it passed Section 110 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, the United States has been trying to develop an effective entry-exit control system but was unable to successfully develop one to track the departure of foreign nationals. Currently, the only system in place is the requirement of most departing passengers to surrender their Form I-94 Departures Cards at the time they leave the country.

Canada and the United States have agreed to establish a system to exchange biographical information on the entry of travelers to show a record of entries and exits into one country from the other. This initiative will allow the United States to track the departure of foreign nationals from the U.S. by outsourcing the task to Canadian border security.

With respect to air travel, Canada will adopt a system to establish exits similar to that of the United States where airlines are required to submit their passenger manifest information on outbound information flights. This is to be effective June 30, 2014.

Conclusion and Recommendation

This new plan, to improve immigration and border security and to promote sharing of information, may raise privacy concerns; however, the purpose of the plan is to facilitate smooth travel and to efficiently secure our borders. The initiatives have not been implemented yet but companies should start tracking work permit/visa history of all foreign workers and monitor the employees’ entries and exits in and out of Canada and the United States.

For further details and updates regarding this or to obtain details on any U.S. or Canadian work permit/visa categories, please contact the Bomza Law Group.

GENERAL

The NAFTA Treaty visa (“TN”) is a product of the North American Free Trade Agreement (“NAFTA“), an agreement signed by the governments of the United States, Canada and Mexico, which created a trilateral trade bloc in North America.

TN status permits Canadian and Mexican citizens to work in the United States so long as the applicant fits within a certain occupational category. Though the TN is a temporary visa, it may be renewed in 1-3 year increments. Currently, there is no cap on the amount of times it can be renewed. Furthermore, TN applicants may bring their accompanying spouse and children into the United States with them upon entry or after the applicant has been granted TN status.

TN status can be attained at a port of entry into the United States (i.e. the United States border or airport in Canada).  Unlike most visas, TN status does not require the completion of forms and is not restricted by quotas or waiting periods. Thus, TN status is generally considered the quickest and most easily attainable work visa for Canadians and Mexicans who qualify.

REQUIREMENTS

To obtain a TN visa the applicant must meet the following requirements:

1. Citizenship: To obtain a TN visa you must be a Canadian or Mexican citizen. Thus, Canadian/Mexican landed immigrants and non-citizens are ineligible for TN status.

2. Employment Offer: You must have an offer of employment from a business located in the United States. The employment offer must not be tentative, however. In other words, your employment must be guaranteed on the condition you receive TN non-immigrant status.

3. Temporary Intent: TN status is a non-immigrant visa, which means you may only stay in the United States temporarily while in TN status. Accordingly, while applying for TN status it is imperative that, if questioned, you express temporary intent – that is, the intent to return to Canada/Mexico upon the expiration of your visa.

4. Temporary Duration: Your employment in the United States must be intended to last for no longer than 3 years. However, at the end of the 3 year term, you and/or your employer may renew the visa for another 3 year term. There is no limit on the amount of times your TN status may be renewed. Nonetheless, upon each renewal you must have temporary intent.

5. Occupational Category: TN applicants must be offered a position as a professional that falls under the category of occupations listed in Chapter 16 of NAFTA, Appendix 1603.D.1 (the “Schedule of Professions”). The profession must be exactly the same as one of the professions listed in the aforesaid schedule or you will not qualify for TN status.

6. Position Requires a NAFTA Professional: The position you have been offered must actually require a NAFTA professional. For example, if you are seeking to enter the United States under TN status as a lawyer, but you will actually be working as a journalist, and thus the position does not actually require someone who is licensed as a lawyer, then you will not be granted TN status.

7. Educational and/or Experiential Qualification: You must meet the educational and/or experience requirements for the profession as set out in the Schedule of Professions. Unless otherwise noted, each profession requires at least a Baccalaureate or Licenciatura degree that is directly related to the given profession. However, some of the professions listed in the schedule only require experience and/or post-secondary certification other than a Baccalaureate or Licenciatura degree.

8. Licensure Requirement: If applicable, you must have the relevant license required to engage in the given profession within the particular location in the United States where you will be working. This requirement only applies if licensure is necessary to practice within the given field. This requirement is purely profession specific.

9. No strike or lock-out: To obtain a TN visa, your prospective employer must not be experiencing a strike or lockout. However, even if the company is currently engaged in a strike or lockout, it is possible that this event may not prohibit you from receiving a TN if it is wholly unrelated to your position.

10. Health Care Professionals: Certain health care professionals must complete a visa screening requirement prior to applying at the border.

NECESSARY DOCUMENTATION

You must provide the following documentation to the Customs official at the United States port of entry to be admitted as a TN non-immigrant:

1. Proof of Citizenship: A passport will satisfy this requirement.

2. Employment Letter: You must provide a letter from your prospective employer detailing items such as the professional capacity in which you will work in the United States, the purpose of your employment, your length of stay, and your educational qualifications.

3. Credentials: You must provide the applicable educational, experiential and licensure credentials.

4. Application Fee: You must provide a $50.00 administrative fee for yourself and a $6.00 fee for each additional I-94 card that is obtained.

Note: The application described above applies to Canadians. The application procedure for Mexicans is different than that outlined above.

Upon being admitted as a TN non-immigrant, you will receive a Form-I-94 Arrival/Departure card. This card indicates the date upon which your TN status expires. Your Form I-94 will be stapled to your passport and you will be required to provide it to US customs each time you enter the United States.

VALID CREDENTIAL DOCUMENTATION

To satisfy the credential requirement, and thus demonstrate that you have the required educational, experiential, and/or licensure qualifications, you should provide copies of the following documents:

1. school records,

2. diplomas,

3. licenses,

4. degrees,

5. certificates or membership in professional organizations

6. transcripts showing an appropriate degree (bachelor’s degree or higher) from a recognized university or college; a statement of U.S. equivalency is required if you obtained the degree from outside North America.

SPOUSE AND CHILDREN

TN family members consists of spouses and unmarried children under 21 years of age. Thus, a mother, aunt, cousin, brother and so on are not considered a TN family member for admission purposes.

The TN visa-holder’s spouse, and unmarried children under the age of 21, may also enter the United States accompanying or following the TN visa-holder. However, the family member must demonstrate a bona fide spousal or parent-child relationship to you.

The TN visa holder’s spouse and children are not permitted to work while in the United States, but they are permitted to study.

On March 2, sponsored spouses or partners are ineligible to sponsor a new spouse or partner for five years from the day that they are granted permanent residence status in Canada. Effective today Minister Jason Kenney announced a spouse or partner from abroad being sponsored by a Canadian or permanent resident would be required to live together with their sponsor in a legitimate relationship for two years following receipt of their permanent resident status in Canada. If these steps are not pursued, the sponsored spouse or partner’s status could be revoked, possibly leading to their removal and in some instances, criminal charges could also be laid. For all legitimate relationships, the condition would cease to apply once the conditional period has elapsed.

This measure would apply to all spouses in relationships of two years or less who have no children with their sponsor at the time of the sponsorship application. In response to the concern that this conditional measure could increase the vulnerability of sponsored spouses and partners who are in abusive relationships, the proposed condition is said to cease to apply in instances where there is evidence of abuse by a person related to the sponsor, whether that person is residing in the household or not, during the conditional period. Given the dangerous risk of this conditional measure perpetuating situations of abuse and isolation, Minister Kenney must work with stakeholders and groups who support victims of abuse and neglect to ensure cracking down on marriage fraud does not lead to grave unintended consequences.

The existence of a genetic parent – someone whose child contains their genetic information – is what current citizenship policy relies on to determine who can receive citizenship by descent or derivative. However, children born abroad through assisted human reproduction (AHR) and/or surrogacy arrangements undertaken by Canadian intending parents are not eligible for Canadian citizenship by descent as no genetic lineage to the Canadian parent can be established.

This is unlike Canadian family law where the determination of whether a person is a “parent” is not merely dependent on a genetic link between the biological parent and the child, but also based on evidence of intention to parent and demonstration of parentage as displayed by the existence of a legal parent/child relationship.

Under CIC’s current policy with respect o AHR or surrogacy DNA will be required from parents applying for citizenship on behalf of their children only when there is evidence suggesting that the Canadian parent is not the genetic parent and not as a matter of course.

As of March 2, 2012, sponsored spouses/partners must wait five years from the day they are granted permanent residence status in Canada if they wish to sponsor another spouse/partner. Until that date, Canadians and Permanent Residents who sponsored a foreign national could risk being deserted by their newly sponsored spouse, with the latter thereafter immediately able to sponsor another spouse/partner. This could occur even through the foreign national’s original sponsor remained financially responsible for the spouse who had deserted them for up to three years. The new changes are intended to curb marriage fraud.

It is expected that this change will be followed by further amendments to the system. One such anticipated change will see newly sponsored spouses receiving conditional permanent residence for two years after their arrival in Canada, after which time they will be transitioned to full permanent residence only if the sponsor and applicant are able to confirm that their relationship has lasted for two years in question.

GENERAL

There is no question that the United States is one of the hottest markets for individuals looking to establish a successful career in the entertainment industry and the arts in general. Whether you are an actor, photographer, singer, writer or artists of any sort, the United States can provide you with opportunities that exist nowhere else in the world. For this reason, the U.S. is one of the most sought out destinations for artists of all types.

Unfortunately, for those of us who are not United States citizens, entering the U.S. to work as an artist is not as simple as accepting an employment offer. Artists who are not U.S. citizens, or permanent residents, must first obtain an employment visa before they can enter the U.S. to work. This article provides an overview of the O1 visa, a form of work authorization that caters to qualifying artists who wish to take their talent to the United States.

A. Persons of Extraordinary Ability

The O1 visa is available for persons of documented extraordinary ability in the sciences, arts, education, business, or athletics. Despite the relatively dynamic nature of the  O1 visa, in this article our focus will be on how the O1 visa applies to those within the arts.

B. General Requirements Applicable to All Art Related O1 Cases

Entering the U.S. to Perform in an Event

To qualify for an O1 visa, you must be entering the U.S. to work or perform in an event or series of events. Generally speaking, what constitutes an “event” is fairly broad by O1 standards, and includes activities such as acting in a TV show, commercial or theatrical production, performing at a concert, book readings, and so forth.

Employment through an Agency

Many artists enter the U.S. under an arrangement where they are employed by an agency rather than the organization responsible for the production or event. Such an arrangement is common and perfectly permissible. In instances where the artist is employed by an agency, he or she is still eligible for an O1 as long as the agency can provide an itinerary of events the artists will be attending while in the United States.

Advisory Opinion

To obtain an O1 visa, you will need to get a written advisory opinion. If you are entering the U.S. to perform in the motion picture or television industry, you will need to obtain separate opinions from both a labor and a management organization with expertise in your field of endeavor. If you are entering the U.S. to work or perform in any other area of art, you must provide an opinion from a peer group (including labor organizations) or from a person designated by the group with expertise in your area.

Timeline for Filing O1 Petition

The O1 petition may not be filed more than six months prior to the date you will start your employment.

Support Staff

Essential support personnel of O1 visa holders, such as makeup artists for example, may to enter the U.S. to continue their duties for the artist on what is referred to as an O2 visa. O2 workers must be an integral part of the event and have critical skills, as well as experience with the O1 work, that are not general in nature and cannot be performed by a U.S. worker. Also, in the case of motion picture or television production, there must be a preexisting long standing working relationship between the O2 applicant and the O1 worker.

C. Extraordinary Ability in the Television and Movie Industry

To qualify for an O1 visa as an individual entering the U.S. to work in the television or motion picture industry, you must demonstrate avery high level of accomplishmentevidenced by a degree of skill and recognition significantly above that ordinarily encountered.

To meet the “high level of accomplishment” standard, you must provide evidence that you have received, or been nominated for, significant national or international awards or prizes in the particular field, such as an Academy Award, Emmy, Grammy or Director’s Guild Award, or evidence of at least three of the following:

1. Performed or will perform services as a lead or starring participant in productions or events which have a distinguished reputation as evidenced by critical reviews, advertisements, publicity releases, publications, contracts or endorsements;
2. Achieved national or international recognition for achievements, as shown by critical reviews or other published materials by or about the individual in major newspapers, trade journals, magazines, or other publications;
3. A record of major commercial or critically acclaimed successes, as shown by such indicators as title, rating or standing in the field, box office receipts, motion picture or television ratings and other occupational achievements reported in trade journals, major newspapers or other publications;
4. Received significant recognition for achievements from organizations, critics, government agencies or other recognized experts in the field in which the alien is engaged, with the testimonials clearly indicating the author’s authority, expertise and knowledge of the alien’s achievements;
5. A high salary or other substantial remuneration for services in relation to others in the field, as shown by contracts or other reliable evidence

D. Extraordinary Ability in Artistic Endeavors Other than Television and Motion Pictures

To qualify for an O1 visa as an individual entering the U.S. to engage in an artistic endeavor other than television or motion pictures, such as theatrical productions, visual arts, music and so forth, you must demonstrate “distinction”. Distinction means a high level of achievement in the field of arts evidenced by a degree of skill and recognition substantially above that ordinarily encountered.

The same evidence that is required to demonstrate a “high level of accomplishment”, as required with television and motion picture cases, is also required to show distinction. That is, you must provide evidence that you received a significant national or international award or provide evidence from at least three of the five categories listed above. However, unlike with the “high level of accomplishment” standard, used in television and motion picture cases, if you are not able to provide evidence from at least three of the above five categories, you may provide other comparable evidence in the alternative. Thus, in effect, the “distinction” requirement is a considerably lower standard than the “high level of accomplishment” criteria.

Conclusion

The O1 is the ideal visa for those involved in the arts who wish to obtain employment in the United States. By obtaining an O1 visa, actors, writers, singers, dancers and artists of all types can further their career by taking their talents to the United States. If you are interested in obtaining an O1 visa so that you can work in the U.S., feel free to contact us today so that we can connect you with a U.S. immigration attorney who has experience with O1 cases.