Canada: United States Immigration Alert

1. Travellers From Visa Waiver Countries Must Obtain Pre-Approval From The Department Of Homeland Security Before Entry

Travellers from visa waiver countries must first obtain pre-approval from the Department of Homeland Security by following the instructions on the Electronic System for Travel Authorization website.1 The pre-approval application must be submitted directly online and takes 24 to 48 hours to process. Each approval is good for five years for multiple trips to the United States. Visa waiver passport holders cannot enter the United States without such an approval notice.

The visa waiver program is for citizens of certain countries who are visiting the United States for business or pleasure purposes for trips that last 90 days or less. For a complete list of countries currently participating in the Visa Waiver Program, please click here.2

Thus, if you have any employees who are planning to use the visa waiver program in the near future, they must apply for preapproval through the above-mentioned website before travelling to the United States.

2. New I-9 Form Available, United States Citizenship And Immigration Services Delay Change In List Of Acceptable Documents

The new I-9 employment authorization form may be downloaded from the website of the United States Citizenship and Immigration Services (USCIS).3 The new form reflects the Department of Homeland Security's new regulations relating to the list of acceptable documents that employers may request to verify an employee's ability to work in the United States. This new rule goes into effect on April 3, 2009, and, in essence, requires employers to accept documents that have not yet expired. Examples of such acceptable documents are on List A of the I-9 form.

The USCIS also recently announced that more than 100,000 employers are participating in E-Verify, an online system that employers can use to verify the work authorization of newly hired employees.

Most importantly, please note that any new economic stimulus package bill approved by Congress will only provide funding to employers who participate in the E-verify program.

An E-Verify fact sheet is available on the USCIS website.4 Please let us know if you require our assistance to register with E-Verify.

3. H-1B Visa Season Is Here

As you may know, the H-1B visa season is upon us. H-1B visas are for professionals holding a degree in their specialty and are valid for a period of up to 6 years. Beginning on October 1 each year, Congress allots 85,000 visas for the H-1B category. The first and only possible date to apply for an H-1B visa for any given fiscal year is April 1.

Last year, the USCIS received over 165,000 petitions for the 85,000 available visas. To handle this overflow, the USICS held a computer-generated lottery to determine the allocation of the available visas. Thus, we recommend that you gather the necessary documents as soon as possible to ensure that H-1B visa petitions for your prospective foreign workers are properly filed on April 1. Please let us know if you require our assistance in the filing of your H-1B visa petitions.

Furthermore, please also note that financial institutions that have received bailout funds from the United States government are ineligible to petition for H-1B visa status on behalf of any new employees unless strict recruitment steps have been followed. For more details, please contact us.

4. United States And Canadian Citizen Land/Sea Entry Requirements Will Change On June 1, 2009

In compliance with the Western Hemisphere Travel Initiative, the United States Customs and Border Protection recently announced that as of June 1, 2009, United States and Canadian citizens aged 16 and older must present one of the following in order to enter the United States by land or sea:

  • United States or Canadian Passport; or
  • United States Passport Card; or
  • Trusted Traveler Cards (NEXUS, SENTRI, or FAST); or
  • State or Provincial Issued Enhanced Driver's Licence (which denotes identity and citizenship); or
  • I-551 United States Permanent Resident ("Green") Card.

United States and Canadian citizens under the age of 16 may continue to use a birth certificate to enter the United States by land or sea after June 1, 2009.

We urge United States and Canadian citizens to apply for the appropriate documentation now, since this initiative will go into effect as of June 1, 2009. Until then, travellers may use alternative forms of identification such as a valid driver's licence in addition to a birth certificate or military identification in order to enter the United States by land or sea.

Also, as a reminder, please note that all travellers, regardless of age, must possess a valid passport in order to enter the United States by air.

If you have any questions regarding the contents of this article, please do not hesitate to contact us.

Footnotes

1. https://esta.cbp.dhs.gov/esta/esta.html?_flowExecutionKey=_c3EF07702-492E-E03D-2436-00B9C8F97C50_kE2CB25CB-6430-16AB-6654-CA6076EC621A.

2. www.cbp.gov/xp/cgov/travel/id_visa/business_pleasure/vwp/.

3. http://www.uscis.gov/files/form/I-9_IFR_02-02-09.pdf.

4. www.uscis.gov/files/article/everify_fact_sheet8Jan09.pdf.

About Ogilvy Renault

Ogilvy Renault LLP is a full-service law firm with close to 450 lawyers and patent and trade-mark agents practicing in the areas of business, litigation, intellectual property, and employment and labour. Ogilvy Renault has offices in Montréal, Ottawa, Québec, Toronto, and London (England), and serves some of the largest and most successful corporations in Canada and in more than 120 countries worldwide. Find out more at www.ogilvyrenault.com.

Ogilvy Renault is the International Legal Alliance's Canadian Gold Award winner for 2008 in M&A and Corporate Finance.

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