Canadians are eligible for a variety of U.S. Visas.

The two most common and successful options for Canadians are TN status and the E-2 Treaty of Investment Visa.

TN STATUS

REQUIRMENTS

• Have a U.S. Job offer from a U.S. employer before applying for TN status
• Must show intent to return to Canada after expiration of your TN status
• Must have 5 years of experience in consulting or a bachelor’s degree for the professions listed under Appendix 1603.D.1

ABOUT THE TN

• The TN visa was originally created under the North American Free Trade Agreement (NAFTA) between Canada, U.S. and Mexico. Although we use the term “visa” for purposes of this info, Canadians are not actually issued a “visa.” Instead, they are admitted in TN status if approved.

• As of July 2020, TN visas are being issued under the newly named United States-Mexico-Canada Agreement (USMCA).  While NAFTA no longer exists, Appendix 1603.D.1 that governs TN visas has been incorporated into the USMCA.
• TN status may be granted for up to three years, the same duration as an H-1B visa.
• You can find the entire list of professions and occupations listed under Appendix 1603.D.1 at: https://www.nafsa.org/_/file/_/amresource/8cfr2146.htm
• Generally, TN status is easier to have approved than other work visas such as the H-1B.

APPLYING

• in person at a port of entry (POE) to the United States, such as a major Canadian airport or a land border.

or

• the employer files a petition to USCIS.

Depending on the situation with USCIS and laws it depends on your situation which way would be a more advantageous applanation process. To find out more information with your specific case please contact our office.

E-2 TREATY OF INVESTMENT STATUS

The E-2 visa is an immensely popular and successful option for Canadians.

The E-2 treaty investor visa allows Canadian citizens to buy or start a business in the U.S.

PROCESS:

To start a U.S. business and to qualify for an E-2 visa, the Canadian investor needs to

1. make a full investment into the U.S. enterprise.
2. Set up a legal business structure (such as an LLC, C-Corp, etc.), getting a FEIN and open a business bank account.

Many E-2 investors open the corporation in Wyoming due to the favorable business. Depending on the business, it may also mean obtaining necessary permits, inspections, or licenses such as, a beauty busines may require a cosmetology license or a construction business may require certain construction licenses.

E-2 VISA REQUIRMENTS:

• To qualify for an E-2 visa, the Canadian citizen investor must either purchase an existing business or start a new business from the ground up. “Active commercial enterprise” means that the business must be offering a tangible good, product, or service. Examples of an E-2 business include:

• Restaurant
• Retail or convenience store
• Oil refinery
• Beauty business i.e. nail salon
• Dental or medical clinic
• Importing and exporting

The business cannot be passive, idle, or speculative. This means that real estate investment, such as buying and flipping real estate; or financial investment, such as buying and selling stocks, do not qualify.

• The investor must oversee and direct the day-to-day operations.
• For Canadians, the E-2 visa is valid for five years at a time and may be renewed indefinitely providing the business continues to operate and is corresponding to a reasonable degree with the business plan.
• The Department of State requires all E-2 applicants to put their investment at risk before applying. Therefore, you MUST purchase or start the business before submitting your application. If you have $150,000 sitting an account that you intend to use to purchase or start a business, this will not be sufficient to qualify for an E-2 visa.
• The Foreign Affairs Manual (FAM) does not quantify or define what is considered a “substantial investment” to qualify for an E-2 visa. Generally, consulates have interpreted this amount to be around $100,000.00. However, it varies on the mature of business and state. For example, a beauty business in Las Vegas would require less investment than an oil refinery construction in Los Angeles. For situations where an active Canadian company is looking to expand to the U.S., the E-2 investment amount may be lower and still be approved.
• The investment must be “AT RISK’. This means that the Canadian citizen investor must have already spent the money towards the startup or purchase of a U.S. business $100,000 in a bank account would not be considered at risk because the applicant has not irrevocably committed the funds towards the enterprise. Thus, purchasing company assets and good to demonstrate you have committed your funds is necessary.

The good news is that the Foreign Affairs Manual does allow for a purchase contingency for existing business E-2 applications. Meaning, a Canadian citizen making an offer to purchase a beauty salon for $100,000 contingent on approval of the E-2 visa, and the buyer agrees, the funds can be put into an escrow account until a decision is made at the consulate interview. If the E-2 visa is approved, the escrow officer will be instructed to transfer the funds to the seller and title to the business will be transferred to the buyer. If the E-2 visa is denied, the escrow officer will be instructed to transfer the funds back to the buyer.

• Ownership – the Canadian citizen must own at least 50% of the U.S. business. If they own less than 50% of the enterprise, they may still be able to work in the U.S. as an E-2 employee so long as more than 50% of the U.S. enterprise is Canadian-owned.
• Canadian citizens who are approved for E-2 visas are usually given a validity period of five (5) years. Furthermore, every time a Canadian citizen enters the U.S. in E-2 status, they will be admitted for up to two (2) years on that entry. At that time, they will have to depart and then re-enter at which time they will be admitted for another two (2) years.

CANADIAN EMPLOYEES

If a U.S. company is at least 50% Canadian-owned, you may be able to send Canadian employees to work for the U.S. company under E-2 visas as executives, managers, supervisors, or employees with essential skills. This does require extensive documentation to show that this individual is qualified for this position to ensure you are not displacing a U.S. worker/workers.

CANADIAN PERMANENT RESIDENTS

E-2 visa eligibility is based on an applicant’s country of citizenship – not residency. So Canadian permanent residents or landed immigrants are only eligible to apply for an E-2 visa if they are a citizen of another E-2 Treaty country. For example, a Canadian permanent resident who is a British citizen is eligible to apply for an E-2 visa because the U.K. is a treaty country to the U.S. However, a Canadian permanent resident who is an Indian citizen cannot apply for an E-2 visa because India is not a treaty country to the U.S.