On November 10, 2009, Citizenship and Immigration Canada (“CIC”) amended its Foreign Worker Manual (“FWM”) to impose additional restrictions on intracompany transferees (Exemption Code C12) who enter Canada to work for start-up businesses. Under Subsection 205(a) of the Immigration and Refugee Protection Regulations, international companies may temporarily transfer qualified employees from their foreign offices to their Canadian facilities as intracompany transferees. This exemption is considered the Canadian equivalent of the L-1 nonimmigrant classification in the United States.

According to the FWM, where the Canadian employer is a “start-up company,” it will be expected to:

• Secure physical premises to house the Canadian operation;
• Furnish realistic plans to staff the new operation; and
• Have the financial ability to commence business in Canada and compensate employees.

This essentially mirrors the requirements imposed on “new office” L-1 petitions in the United States. Although the phrase “start-up company” has not been defined, these requirements were clearly derived from United States immigration laws; it is therefore helpful to consider the meaning of “new office” within the context of the L-1 category in the United States. Under U.S. law, the phrase “new office” means a business that has been doing business for less than one year.

In addition to the above, the following requirements must also be established:

• Executives/managers: The company must demonstrate that it will be large enough to support the executive or management function.
• Specialized Knowledge: The company must demonstrate that it is expected to be doing business and the work must be guided and directed by management at the Canadian operation.

The requirement that the specialized knowledge worker be guided and directed by management at the Canadian operation appears to be stricter than the L-1B category in the United States, since it is possible to send L-1B workers to a new office in the United States without already having managerial personnel in place. The FWM suggests that a specialized knowledge worker will not be permitted to enter to work for a start-up operation in Canada unless a Canadian manager is already in place or an executive or manager is also transferring to the start-up company.

Work permits granted to intracompany transferees working at start-up operations in Canada are limited to an initial term of one year. The same limitation applies to new office L-1 petitions in the United States.

In order for the foreign national to obtain a renewal of their intracompany transferee work permit after the first year, he or she must provide evidence that:

• The Canadian and foreign companies still have a qualifying relationship;
• The new office has engaged in the continuous provision of goods or services for the past year; and
• The new office has been staffed;

The American Bar Association (ABA) Section of International Law will be holding a Continuing Legal Education teleconference on United States and Canadian immigrant investor options. The title of the teleconference is “Dealing with the Investment Immigration Visa: Navigating the Differences in U.S. and Canadian Laws” and it will take place tomorrow (Wednesday, January 27, 2010) at 1:00pm-2:00pm ET.

Along with other panelists, Mr. Chang will provide an overview the U.S. EB-5 immigrant investor category, the Canadian federal immigrant investor category, the Quebec immigrant investor category, and other investor options available under Provincial Nominee Programs. The EB-5 program will also be compared to its Canadian counterparts.

The teleconference is open to ABA members (at a discounted price) and to the general public (at full price). For additional information, please refer to the following URL: http://www.abanet.org/cle/programs/t10iiv1.html

In a January 19, 2010 press release, United States Customs & Border Protection (USCBP) reminded U.S.-bound travelers from Visa Waiver Program (VWP) countries that they must register under the Electronic System for Travel Authorization (ESTA) in order to continue using the VWP. ESTA is an electronic travel authorization that all citizens of VWP countries must obtain prior to boarding a carrier to travel by air or sea to the United States under the VWP. The requirement does not affect U.S. citizens returning from overseas or citizens of VWP countries traveling on a valid U.S. visa.

Technically, ESTA has been mandatory for VWP travelers since January 12, 2010. According to USCBP, beginning January 20, 2010, it will initiate a 60-day transition to enforced ESTA compliance for air carriers. Its press release states that VWP travelers without an approved ESTA “may not be allowed to board a U.S.-bound plane.” This presumably means that during the transition period, travelers who do not have an approved ESTA may be giving a warning initially and then denied boarding on subsequent applications unless they obtain an ESTA during the transition period. However, it could also mean that they could be admitted or denied at the discretion of the inspecting officer.

ESTA applications may be submitted at any time prior to travel, and once approved, generally will be valid for up to two years or until the applicant’s passport expires, whichever comes first. Authorizations are valid for multiple entries into the U.S.

VWP travelers are required to log onto the ESTA Website and complete an online application. The web-based system prompts applicants to answer basic biographic and eligibility questions typically requested on a paper I-94W form; ESTA is expected to completely replace the paper I-94W in the coming months. A third party, such as a relative, a friend, or a travel agent, may submit an application on behalf of a VWP traveler.

On January 15, 2010, the Department of Homeland Security (“DHS”) issued a memorandum providing interim field guidance for the various forms of relief that United States Citizenship and Immigration Services (“USCIS”) has committed to undertake as a result of the January 12, 2010 Haiti earthquake. This guidance may be summarized as follows:

Change or Extend Nonimmigrant Status

USCIS will use its discretion to more readily approve applications for change or extension of nonimmigrant status filed by affected aliens. Haitian B-1/B-2 visa holders who are unable to return home may file an extension of status for an additional 6 months. Those aliens who are unable to pay fees may file a fee waiver request. In cases where an alien is no longer able to extend his or her current nonimmigrant status, favorable consideration should be given to requests to a change of status to B-1 or B-2.

Service Center directors have the authority to accept applications for an extension of stay or change of status submitted after the applicant’s period of admission has expired. Haitian nationals and residents in lawful, nonimmigrant status on January 12, 2010, will be excused for filing up to March 12, 2010. After March 12, 2010, eligibility for delayed filing will be determined on a case by case basis.

Reparole Affected Parolees

Haitian aliens already in the United States pursuant to a grant of parole by USCIS may file for reparole at the District Office having jurisdiction over the alien’s place of residence. Absent compelling adverse factors, the District Director should exercise his or her discretion favorably for reparole.

Extend Grants of Advance Parole

An automatic extension of advance parole is granted until March 12, 2010, to those aliens who are currently in Haiti if their advance parole authorization expires between January 12, 2010 and March 12, 2010.

Grant F-1 Students Off-Campus Employment Authorization Documents (“EADs”)

Nonimmigrant students from Haiti who may be unable to continue to cover the cost to engage in a full course of study may need an off-campus EAD. A Haitian national or resident who has been recommended by the Designated School Official will receive such an EAD.

Expedited Processing

USCIS will expedite processing of the following applications:

1. Requests for advance parole; and
2. Relative petitions for minor children of eligible lawful permanent residents (“LPRs”) and United States citizens (“USCs”) residing in affected areas.

Assist Persons Stranded Without Documents

When the Embassy in Port-au-Prince is open, the USCIS field office there will assist LPRs who have lost their documents. The field office in Santo Domingo should also continue to provide assistance to individuals evacuated to the Dominican Republic who may have lost their documents.

Issue EADs for Orders of Supervision

USCIS shall adjudicate, as promptly as possible, EADs relating to aliens who have been issued Orders of Supervision pursuant to stays of removal by U.S. Immigration and Customs Enforcement.

Abandonment and Requests for Evidence

USCIS will consider exercising discretion on a case-by-case basis not to deny for abandonment or failure to respond to a Request for Evidence, if the applicant/petitioner/beneficiary lives in the affected area or if the alien needed to obtain documentation from the affected area or otherwise demonstrates a direct connection between the disaster and the failure to pursue the application/petition.

Humanitarian Parole

Humanitarian parole may be used on a case-by-case basis to address compelling and urgent humanitarian needs. Many USC prospective adoptive parents are already in the process of adopting a child from Haiti. In these cases, USCIS will consider granting humanitarian parole to a child without a visa where it is presented with evidence of a final adoption decree issued by the Government of Haiti or a grant of custody to USC adoptive parents for the purposes of emigration and adoption in the United States.

The special immigration measures recently announced for people in Haiti (including priority processing) only apply to family members, including spouses, common-law and conjugal partners, dependent children (including a child adopted abroad) parents, grandparents and orphaned family members of Canadian citizens, permanent residents and protected persons. The Canadian family member must sponsor the application. Citizenship and Immigration Canada’s current priorities are:

1. Children (adopted or unaccompanied dependents of Canadian citizens or permanent residents)
2. Spouses and dependent children
3. Parents and grandparents
4. Dependents of principal applicants who have applied for permanent residence as protected persons.

The Government of Canada is concerned that some members of the Haitian-Canadian community are being misled into believing that a paid immigration consultant can speed up the arrival of their loved ones from Haiti. No immigration consultant can speed up this process. If an applicant chooses to hire a consultant, their application will not be given special attention or processed faster.

The only representatives who may charge a fee to represent or advise applicants on immigration and refugee matters with the Government of Canada are:

1. Lawyers who are members in good standing of a Canadian provincial or territorial law society;
2. Immigration consultants who are members in good standing of the Canadian Society of Immigration Consultants (CSIC); and
3. Notaries who are members in good standing of the Chambre des notaires du Québec

The Government of Canada will not deal with non-authorized representatives who charge a fee for their service. Additional information on choosing a legal representative may be found here.

Citizenship, Immigration and Multiculturalism Minister Jason Kenney announced today that Canada will expedite immigration applications from Haitians with family in the country. Haitians in Canada temporarily will also be allowed to extend their stay.

Effective immediately, priority will be given to new and existing sponsorship applications from Canadian citizens, permanent residents and protected persons who have close family members in Haiti. However, they must identify themselves as being directly and significantly affected by the current situation and notify Citizenship and Immigration Canada (“CIC”). Priority consideration will also be given to pending adoption cases with the visa office in Port-au-Prince.

New sponsorship applications should have “Haiti” prominently written on the mailing envelope. Sponsors and applicants presently in Canada who have applications in process should notify the CIC Call Centre at 1-888-242-2100 (in Canada only, from 7:00am to 7:00pm Eastern Time, Monday through Friday) or by email at question-Haiti@cic.gc.ca to identify their existing applications, if they or the family they have sponsored have been adversely affected.

Also effective immediately, CIC has also put in place special immigration measures for Haitian nationals who are currently in Canada. Temporary residents already in Canada may apply to extend their temporary status according to normal procedures. These applications will be considered on an expedited basis and fees associated with these applications will be waived. Those who are unable to support themselves may also apply for a work permit.

Further, all removals to Haiti have now been temporarily halted. Although normally the Government of Canada does not deport people to Haiti except in limited circumstances, this now applies in all cases.

The Department of Homeland Security (“DHS”) has announced temporary relief measures that will be made available to those individuals who are unable to return to their home country due to the destruction and humanitarian crisis in Haiti or are currently traveling in the United States. United States Citizenship and Immigration Services (“USCIS”) will also expedite the processing of certain immigration applications. Standard requirements for security checks will remain in place under expedited procedures. DHS will continue to work with other branches of the United States Government to closely monitor developments in Haiti to determine the need for additional action.

Temporary relief measures available to nationals of Haiti include favorable adjudication, where possible, of requests for change or extension of nonimmigrant status, acceptance of applications for change or extension of nonimmigrant status submitted after the alien’s authorized period of admission has expired, re-parole of aliens granted parole by USCIS, extension of certain grants of advance parole, expedited processing of advance parole requests, favorable and expedited adjudication, where possible, of requests for off-campus employment authorization due to severe economic hardship for F-1 students, expedited processing of immigrant petitions for children of U.S. citizens and lawful permanent residents (“LPRs”), issuance of employment authorization where appropriate and assistance to “LPRs” stranded overseas without documents.

The Canadian Government says it is looking into a plan to help fast-track immigration from Haiti in the wake of the earthquake that has crippled the Caribbean country. Prime Minister Stephen Harper said on Thursday that he and Immigration Minister Jason Kenney have been discussing ways to ease immigration and refugee rules to allow more Haitians into Canada quickly.

The federal government is looking at ways to make it easier for Haitians to come to Canada as immigrants or refugees, in response to the devastating earthquake in the Caribbean country. Options include waiving fees, speeding up applications for family reunification, and perhaps even relaxing the definition of who can be included in reunification.

The Canadian Government previously enacted temporary measures to speed-up reunification of sponsored immigrants with their families in Canada, after the December 2004 tsunami that killed over 270,000 people in 11 countries in Asia and Africa. The hardest hit countries were Indonesia and Sri Lanka. Citizenship and Immigration Canada waived fees and granted priority processing to affected applicants.

Foreign Affairs Minister Lawrence Cannon said Ottawa is working closely with Quebec’s immigration minister, Yolande James, to make sure both levels of government are on the same page. Quebec is the primary destination for Haitian immigrants in Canada, and Montreal has one of the biggest concentrations of Haitian populations living abroad.

Citizenship, Immigration and Multiculturalism Minister Jason Kenney announced today that passengers aboard non-commercial aircraft bringing aid to and evacuating people from Haiti that are making a technical stop or transiting through Canada’s airports temporarily will not require a visa.

Yesterday he also agreed to exempt foreign nationals who are directly responding to, or affected by, the humanitarian situation in Haiti and intend to transit through Canada on a non-commercial aircraft for the sole purpose of refuelling and/or making a technical stop from the requirement to obtain a temporary resident visa. This measure will be in place temporarily.

The following items were recently updated on our website:

• January 3, 2009: Revised Article on the R-1 Nonimmigrant Religious Worker Category


• December 28, 2009: Revised Article on Canadian Labour Market Opinions (Revision to Minimum Advertising Requirements)


• December 28, 2009: Revised Article on the EB-5 Immigrant Investor Category (Extension of Regional Center Pilot Program)


• December 28, 2009: Revised Article on the Special Immigrant Religious Worker Category (Extension of Non-Minister Eligibility)