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Episode 44: US Immigration Attorney Diane Butler: Immigration for Entrepreneurs, Remote Workers, Startups and Others

Podcast posted on by Evelyn Ackah in Podcast

Episode 44: US Immigration Attorney Diane Butler: Immigration for Entrepreneurs, Remote Workers, Startups and Others

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Calgary immigration lawyer Evelyn Ackah talks with U.S. immigration attorney Diane Butler, Chair Immigration Group at Davis Wright Tremaine LLP, on the Ask Canada Immigration Lawyer Evelyn Ackah Podcast. Diane’s practice is focused on employment-based immigration for small to large companies, including investors and startups to established multinational companies and troubleshooting cross-border cases. Evelyn and Diane discussed a variety of topics including U.S. and Canadian immigration for entrepreneurs and startups, and the immigration implications of remote working.

Diane Butler can be contacted on LinkedIn.

Immigration for entrepreneurs or startups:

  • The US has several different EB visas for start-ups and entrepreneurs who want to work and live in the US permanently.
    • How they compare to the Canada Entrepreneur and Startup Visas
  • The US EB-5 visa for entrepreneurs and investors has undergone a lot of changes recently. Can you explain the EB-5 visa for our listeners
    • How is that program currently working, and is there a lot of interest in it?
    • How long does it take for approval?
  • The US also has visas for foreign entrepreneurs who want to stay in the U.S. for a short time, like the Visa Waiver Program, or for a few years, like L-1A visas or H-1B visas.
    • What are the wait times for these visas - the H1-B can be incredibly long to get chosen.
    • What are the alternatives?


Immigration implications of remote working:

  • Neither Canada nor the U.S. has a digital nomad visa - but many countries do. How does this impact Canada and the U.S. as attractive destinations for immigration?
    • Evelyn did a podcast on visas for digital nomads, are you getting a lot of inquiries from foreigners who are remote workers and want to work in the US?
    • What about spouses on a work visa who are remote workers - what kind of US visa needs do they have?
  • How do you see remote working changing a company’s needs for foreign workers in the future?
  • What guidance is there for employers on hiring and managing remote workers?
    • There seems to be so much confusion and misinformation about remote working and what employees and employers can and cannot do


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About Evelyn Ackah

Evelyn Ackah is the Founder and Managing Lawyer at Ackah Business Immigration Law. We work with individuals and business owners from all over the world who want to cross borders seamlessly. For more information on immigration to Canada or the United States, Ask Evelyn Ackah at Ackah Business Immigration Law today at (403) 452‑9515 or email Evelyn directly at [email protected].

The Ask Canada Immigration Lawyer Evelyn Ackah podcast by Calgary Immigration Lawyer Evelyn Ackah was named #1 Best Canada Immigration Podcast in 2022 by Feedspot.

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Transcript

Evelyn Ackah:

Good day. Welcome to Ask Canada Immigration Lawyer Evelyn Ackah podcast. It's a very long name, but we do it for social media purposes. I am honored to have today, my friend and colleague Diane Butler, joining us from Washington State. Diane is a partner at Davis Wright Tremaine. Welcome, Diane.

Diane Butler:

Hi, Evelyn. Thanks so much for inviting me.

Evelyn Ackah:

Oh, I'm so excited to have you. I'm going to give a quick bio about you so people know how awesome you are. And that you are our go-to, and we call you whenever we have US immigration questions.

So Diane Butler helps clients successfully navigate the immigration process by providing concise guidance each step of the way. Diane's practice is focused on employment based immigration law for small to large companies, including investors and startups, to established multinational companies.

She also handles I-9s, H-1Bs, H-2A compliance reviews and audits, investigations, and litigation. So the whole spectrum.

Diane partners with in-house legal counsel, human resources personnel and recruiters, in securing foreign talent and problem solving to achieve business objectives.

I really am excited to have you here. Welcome, Diane. And Diane is a partner as well, at the Seattle office of Davis Wright Tremaine, LLP.

Diane Butler:

Thanks.

Evelyn Ackah:

Thank you. Thank you so much. So today, we're going to focus on so many changes that are coming up with immigration. And so, one of the first things I'd love to ask you is about entrepreneurs and startups. And as I read your bio it's referencing the fact that you do this type of work. Can you fill us in a little bit on what options are available in the US, for entrepreneurs and startups, Diane?

Diane Butler:

Sure, I'd be happy to do so. We tend to think of startups as those smaller companies who want to ramp up quickly and get things moving, and maybe entrepreneurs as more of the individual. There are several questions we always think about whenever we're presented with an immigration issue. And in particular, for the startup and entrepreneurial world.

So first of all, "Who is the individual who is going to be employed?" There needs to be some employment. And, "What is their academic background and their work history? What is the job? What role are they going to fail? Are they going to be an executive, a manager, somebody with specialized knowledge?"

And, "Where's the money going to come from? Is the money going to come from the individual entrepreneur? From angel investors? From an entity outside the United States?" Those are really important considerations in this context.

And then, "Who's going to be in control of the work of the individual? Are they going to be in control of themselves? Or is there going to need to be, for the particular immigration category, some element of control by the employing entity?"

And then also a key consideration is, "What is the compensation going to be?" In some instances, there will be a prevailing wage requirement that is established by the US Department of Labor. In the immigration world, most things are controlled by US Citizenship and Immigration Services, or perhaps the State Department, or the Department of Homeland Security. But, the Department of Labor has great concern about what the wage and compensation structure is.

Evelyn Ackah:

Yeah. That makes sense.

Diane Butler:

And then finally, "What's the timeframe in mind? What's the ideal?" I mean, even if somebody wants to have a Green Card, or as they say, become a US citizen. Then they might need to be willing to take a kind of measured approach, and just come in temporarily as a visitor, or a business traveler, in order to get things going. And then be willing to have a temporary status, and hold off on those dreams of becoming a US permanent resident, or citizen.

Evelyn Ackah:

Wow. So just so I'm clear, in the US, say somebody does want to come as an entrepreneur. Do they ever just arrive and get that status right away? Or do they have to do the process of temporary to longer term?

Diane Butler:

That's a really good question. And I do want to point out that the US does not have a startup visa per se. Some countries do, the US doesn't-

Evelyn Ackah:

Yeah, we do in Canada. That's why I was wondering.

Diane Butler:

Canada does. Yeah.

Evelyn Ackah:

So there's nothing that they can come in as a permanent resident?

Diane Butler:

No.

Evelyn Ackah:

Okay. Wow.

Diane Butler:

Right. Yeah, generally, no. But I want to point out, there is something that is called an International Entrepreneur Parole, IEP. And this has been in place since the Obama administration, but it doesn't really work very well.

Evelyn Ackah:

Okay. Yeah.

Diane Butler:

And not used very much, because it requires... Well, it requires a 10% ownership, generally at the minimum, by the individual entrepreneur. And then they have to be involved in something that's going to have a significant public benefit to the United States. And it's kind of odd that that is deemed to require one of a couple of things, to show that somebody else has kind of vetted them.

For example, one would be investment of at least $250,000 from a qualified US investor. And there's a definition for that, as you might imagine-

Evelyn Ackah:

Of course. Yeah.

Diane Butler:

Or, a government awarded grant of $100,000. So I did want to put that out there, that we have something that some folks think of as a startup visa, but it's not. Generally what's needed is to look for an established entity, in order to be a sponsor for employment. However, there may be some ways for an individual to create that sort of entity.

But most often, those who are entrepreneurs, or are interested in startup, will come into the United States on a temporary basis, for an exploratory visit under the business visitor category.

Evelyn Ackah:

And then how do they move from that? That's the key. I'm really trying to figure out that bridge. How do they move from B-1 business visitor, to something else that allows them to work?

Diane Butler:

So it kind of depends on what is going to be the best immigration category fit for them. And in the US immigration world, we have this alphabet soup of all the different various categories. You'd mentioned the B-1 for business visitor, or visitor for pleasure.

When we think about startups, entrepreneurs and investors, kind of the first thought tends to be what we call the E-1, E-2 Investor Visa, Treaty Investor, or a Treaty Trader. And we'll talk mostly, I think, about the E-2 Investor Visa.

And this is something that is really a common concept for Canadians, because the E-2 Investor Visa is available where there's a bilateral investment treaty between the US and Canada. And NAFTA, or USMCA, counts as that treaty. And there is investment coming from that country into the United States, either from an individual, or from an entity that is deemed to be a citizen of that country, Canada. And the individual is, let's say, bringing the money in, to invest and control it and get things started up.

Now, to answer your question, how do you get from that business visitor to an E-2? The general way of doing that is to go through the embassy or consulate outside the United States, because this is treaty based, the state department has control of it. And so, there needs to generally be the consulate involvement in reviewing, to make sure everything is satisfied. And the individual could be either an executive, or manager, or essential employee of that entity in the United States.

So for all of these categories we're discussing, there does need to be an entity established in the United States. If somebody's coming into the United States on a B-1 as a business visitor, they are permitted to go ahead and set up a US company, they just can't work and take a salary-

Evelyn Ackah:

Can't work and... Exactly. Yeah.

Diane Butler:

Yeah. Until they've got some other...

Evelyn Ackah:

Yeah. Our office helps with E-1s, and then we usually bring in people like yourself to help us if we have any E-2s. For that cross border piece, sometimes they don't qualify for an L-1, for instance, right? Or a NAFTA L-1, I would say.

But what is the US EB-5 visa, for entrepreneurs and investors? What has happened with that? Because we obviously don't touch any of that. I don't know anything about it.

Diane Butler:

Yeah. That's a really, really good segue. Because we were just now talking about the E-2 Investor Visa, which is a temporary category. You can get your visa for up to five years, and then stay for up to two years at a time with renewals.

But many people think about the EB-5 Investor Visa, which is a Green Card Investor Visa. And so, the basic requirements are pretty straightforward. You need to invest a specified amount of money either in establishing your own company, in which case you would need to invest... It used to be a million dollars. In March, it was raised for a million and $50,000. And then you would need to set up your company, and have a good strong business plan to create at least 10 new jobs. So, it's a job creation visa.

There is also a lower amount... Not that much lower. It used to be $500,000, now it's $800,000, if you are going to invest in what's called an EB-5 regional center. Either in a targeted underemployment area where there's at least 40%... I forget the percentage. It changed recently. Or, in a rural area.

So now this, again, the rules for this changed recently as well. Before March, there were established regional centers, which were supposed to be in targeted employment areas, that ended up in places like Manhattan. So there have been a lot of EB-5 investments in major metropolitan areas.

But that's kind of been taken off the table, and now it has to be an area of underemployment, or a rural area. So you're going to start seeing a lot of rural, as we call it, EB-5 regional centers, established. Which, really should have some economic benefit to the United States.

The other thing about the EB-5 regional centers, in addition to the lower required investment amount. Is that, you don't have to show you directly created 10 new jobs, but it can be indirect. So-

Evelyn Ackah:

In smaller amounts, yeah.

Diane Butler:

Yeah. Construction costs, for getting things started up, could count.

Evelyn Ackah:

That's so interesting, Diane. Because British Columbia has a program that's similar. It's the Regional Entrepreneur Program. Whereas if it's in the Greater Vancouver region, just across the border from you, that you need to invest more. And then out in the regions, you can come in and try to keep a region employed, hire one or two people, and it's a lower investment.

So it seems like the US and Canada are both focused on those underserved communities, as opposed to everybody who immigrates wants to go to the centers, the big cities. And so, we're all trying to spread them out a little bit. I think that's a great idea for sure.

Diane Butler:

Yes.

Evelyn Ackah:

Wow. Okay.

Diane Butler:

We're still sort of seeing how those changes are going to be playing out. The EB-5 program was extremely stalled for quite a long period of time, which kind of doesn't make sense when you want to get that money to work right away in the US. But things should be kick-started right now, with the recent changes to the program.

Evelyn Ackah:

How long would that process take? I mean, obviously with COVID, both of our practices have been impacted by the slowness of the consulates and the embassies. But what is a normal processing time, let's say, for an EB-5 visa?

Diane Butler:

Oh gosh, it's so hard to say what normal is. I filed a case back in 2014 that was... And there are multiple steps to the process. Where the first phase was approved in about a month. And I have one now... These are both Canadians. One now, where the first phase of the process has been pending since 2018.

Evelyn Ackah:

Oh my God.

Diane Butler:

And that's the first phase of the process. And then once you get that first phase approved, then you can file for your Green Card. And then there are conditions which you need to apply, to have the conditions lifted. Which means that the entity and the project still need to be on the track to success, which can be outside of your control, particularly when there are pooled investments for a particular project.

So, it's hard to say right now. Maybe we'll have a better sense in a year or so from now. The one that has been pending for so long, I learned that there was a site visit, which sometimes we think, "Oh no, not a site visit investigation." But in this case we're happy to have a site visit, because it means that the Immigration Service feels that they are ready to move to the next phase, and we might start seeing some movement in the EB-5 area.

Evelyn Ackah:

Wow. So let's switch now then, to the whole H-1B process. I know you do work for people from all over the world to the US. But let's kind of focus on Western European countries, because we know everything takes longer. Or, Canadians to the US.

What are you seeing in terms of the H-1B process? Is it still... I explain to people the kind of nature of the lottery. But I'm interested to see how long it's taking an average employer to get selected. Is there any kind of rhyme or reason?

Diane Butler:

Sure, sure. It's becoming a little bit predictable once we get beyond the unpredictability of the lottery. And just for a little bit of background, the H-1B category is one of our go-tos for many types of employers, including startups. And possibly entrepreneurs. We can talk about that.

So the H-1B is available where there is a US employer that has a job, where they need someone who has at least a bachelor's degree in a specialty occupation. And that can be a bachelor's degree from the United States, or equivalent from outside the United States.

There is a quota, and it's fairly low for the United States. It's 85,000 new H-1Bs per year. And there is a very high demand for the H-1B category, because it just makes such sense and works so well. Last year there were about 250,000 applications, like mini applications, for this category.

Because there is such a high demand for this limited quota, the Immigration Service has established a lottery. And the way the lottery works is that, in the beginning of March, the employer who is interested in an H-1B for a prospective employee will do a registration, with just a little bit of information about the individual. And there is a window for submitting the registrations open, around March 10th to March 25th. A couple of weeks. A very short period of time.

So, the registrations are submitted. And then the Immigration Service does the lottery on these registrations, and will notify the employer by the end of March, who is selected in the lottery. Then the employer will repair the H-1B petition.

The quota becomes available the first of our fiscal year, which is October 1st. And you can file six months in advance, which is why we have this opening in March. So then, those that are selected in the lottery, we prepare the petitions on paper and mail them off to the Immigration Service for the adjudication, for an October 1st start date.

So, that's kind of the typical process for the H-1B. Many times, the individual already is in the United States. I think probably the vast majority, because they may have graduated from a US university, and we can do a change of status for them within the United States.

So in that case, back to your original question, the timing would be... Let's say an employer has an interest in a potential employee. We're already building our list right now for those. But they might contact us maybe in January, February, right at the beginning of March. And then we would do the registration. They get selected. File the petition.

And then, if they are in the United States and we've done a change of status, they can start work right away in the H-1B category, if it's approved, on October 1st.

Evelyn Ackah:

So I guess the challenge is, I mean, employers have to be planning so far ahead.

Diane Butler:

Right.

Evelyn Ackah:

Let's say that they're coming from India and they're not already in the US. How long do you think... I mean, have you ever had a case where in two or three years they have not been selected? Like, how long are they going to wait for a potential employee?

Diane Butler:

Yes, we've had some. We keep trying to give them a bite at the apple year, after year, after year, and they just never are selected. Yeah.

Evelyn Ackah:

That's unbelievable. Unbelievable.

Diane Butler:

Yeah. I would say, I guess maybe surprisingly, there are few of the clients that I've worked with who just haven't been selected.

Evelyn Ackah:

But on average... I mean, I know you can't give any guarantees. But what I'm trying to figure out is, how long would an employer... If you're lucky to be selected, great. But if you're a student, and you've finished school, and maybe you've finished OPT, you've been working. And you don't get selected, then what?

Diane Butler:

Well, we are going straight to Green Card for some students.

Evelyn Ackah:

Oh.

Diane Butler:

And, I don't know, maybe this is a good time to also talk about the option of working after graduation in student status, as an entrepreneur, or first-

Evelyn Ackah:

Oh. Fabulous.

Diane Butler:

Yes. And that's quite viable. So the way that works is that, foreign students are designated with F-1 status. And after they graduate, they are eligible for 12 months of optional practical training, OPT, when they get an employment authorization document, an EAD card.

And so long as they are working in a job that's related to their degree, there are very few hurdles for the employer. And so, it can be a startup entity. In fact, it also could be the individual's own company.

Evelyn Ackah:

The student's own company?

Diane Butler:

Yes.

Evelyn Ackah:

Wow.

Diane Butler:

Yeah, that actually is a possibility. And one thing that makes it easier than an H-1B is that, the H-1B has a prevailing wage requirement. You have to pay, again, as we discussed, what the Department of Labor thinks is the prevailing wage. For the student in OPT status, there is not a requirement for a minimum prevailing wage.

Evelyn Ackah:

That's so interesting.

Diane Butler:

Yeah. And one other interesting aspect about the F-1 OPT is that, if the individual has a STEM degree, science, technology, engineering, or math. Then they're eligible for an additional 24 months OPT extension. So, many times-

Evelyn Ackah:

That's great.

Diane Butler:

Yeah. So when those employers are hiring those students, they might bring them on board while they've got the first 12 months. Try to get them in the H-1B lottery. If it doesn't work the first time, and they've got a STEM degree, then they've got at least one more bite at the apple.

Evelyn Ackah:

That is just so interesting, how there's so many moving parts with the US immigration, and it is truly an alphabet soup.

Diane Butler:

That's right. Yeah.

Evelyn Ackah:

I find it really interesting. We've had people coming from the States, as you know, the H-1B Green Card thing is just unbelievably long.

Diane Butler:

Yeah.

Evelyn Ackah:

I had a consult yesterday with an Indian citizen who's in the H-1B and he basically said, "I'm a forever H-1B." And that's how he described himself. And I'd never heard that, but he basically was like, "I will never get a Green Card at this point." And so, he's looking to Canada.

How is it that the US government can let these fabulously educated, skilled professionals in, but doesn't allow them to move to Green Card in any reasonable timeframe? Can you explain that? Because in Canada, as you know, you can become a Canadian permanent resident in two years, three years, max. It just doesn't make sense to me.

Diane Butler:

Yeah. I think it has to do with US employers being very ingenious and innovative. And we do have enough categories that we often can find solutions to tide somebody over.

For example, we can, like I said, start a Green Card process for somebody who just graduated. The Green Card process in the United States doesn't require the person ever to have even stepped foot in the US, so there is that possibility. But most are here.

And the typical way to move to a Green Card under employment sponsorship is that, the employer must lay out what the job requirements are, and job duties, including the minimum education and experience. And it must be only the minimum, not tailored to the individual. And then do a labor market test, which I know is different from your labor market test. But, to show that there are no qualified, willing and available US workers. And to obtain a prevailing wage determination from the Department of Labor.

Once all of that is satisfied... This process is called PERM. And once the Department of Labor approves the PERM process, then the employer moves on to what is the petition for their, as we call it, the Alien Worker, the non-US citizen worker. Through the Immigration Service, to show that the Department of Labor agreed that they couldn't find any qualified, willing and available US workers. And now the employer has identified this individual to fill that role.

Now, it can work for startups. But one thing to think about is that, at that second phase, the Immigration Service phase, the employer needs to establish that they have the ability to pay the prevailing wage that the Department of Labor deemed was the wage going forward. And, from the time that they file the petition.

So if you're a brand new startup, then you might still be getting money from investors. And there might be a challenge showing that you have, and will continue to have, the ability to pay as deemed by the Immigration Service and Department of Labor. So, it's-

Evelyn Ackah:

And how long does this normally take? Assuming everything goes... Is there any kind of sense of timing for this whole Green Card process?

Diane Butler:

It depends on what country you're from. And that's not because the US has specific country by country quotas, but there is an overall employment quota for immigrant visas per year. And no country can use more than 7%.

So like the individual who is forever H-1B, this is what's going on with that person. India and China use up a lot of the quota, primarily because of the demand for tech skills in the US. And so, when one country has used up their 7%, then they end up backlogged.

Evelyn Ackah:

Yeah.

Diane Butler:

There's this third phase of the process, where the individual will be moving on to actually apply for the Green Card. If they're in the United States, they would do what we call an adjustment of status, from something like an H-1B to permanent resident status. And you can't even start that third phase of the process if there's any backlog. So India is quite backlogged, because of the quota.

Now, we didn't talk about this, but the H-1B has a six year maximum. However, if you have the phase two of the Green Card process approved, then you can extend beyond the six years. I think the longest one that I had was an Indian client in H-1B status for 14 years before she got the Green Card.

Evelyn Ackah:

Oh my God. It's just unbelievable. It's like, we want to keep these people, so clearly that's why I'm always saying, "Come to Canada. Come to Canada."

Diane Butler:

Yes.

Evelyn Ackah:

Because, I find it's just really difficult from a family perspective and all that stability. And I know that you do your best work, and professionals like yourself. But it's like, we can never give a sense of real timing.

What do you say to your clients when they say, "How long is this going to take?" They all want to know how long it's going to take. What do you say?

Diane Butler:

Well, I would say, to that extent we have benefited, immigration lawyers have benefited, from the well known inefficiencies of the Immigration Service and the US government. So that, when we tell them we don't know, they don't challenge us as to why we don't know. And we give the best range estimates that we can.

And typically what we do is, we say, "Based on current processing times, and based on your country of birth, this is what we project for you." And then we say, "But please don't worry, because we have a plan to keep you living and working in the United States, having the ability to travel while we're waiting." So, that is what is generally most important.

The employees who are in the process tend to be quite patient. Some have given up, but...

Evelyn Ackah:

Oh. It's so brutal. It's so brutal.

Diane Butler:

Yeah.

Evelyn Ackah:

I think obviously, we know politics plays a part in immigration on both sides of the border. And during COVID, how was your practice impacted? Was there any real change in the types of applications that were being processed? Obviously the extensive delays. Was there any other change?

Diane Butler:

Yes. Well, during the prior administration we saw over 1,000 changes to immigration processing rules and regulations. So it was like, batter up, every day. "What's coming at me today?"

During COVID the main change, I would say, that we experienced had to do with individuals who were outside the United States, who got stuck outside the United States, needed to depart, needed to come in for the first time. And there, the situation as I described it was that, nothing was happening unless there was an emergency.

We did have a period of time when there was a national interest exception, where we could get an individual into a consulate or embassy for their visa appointment, provided we could show some national interest. Again, as defined by the government. That was the biggest change I would say that we saw.

Evelyn Ackah:

Yeah. And the backlog continues. Are you finding that applications are still behind? We just applied for a simple B-1, B-2, recently, for a permanent residence, a UK citizen. And it's interesting, because he's been coming back and forth under the visa waiver program for UK citizens. And then one time... I didn't know this. And then he was stopped. And the appointment date is like eight months away from Toronto.

And so, this corporate client is like, "What is this?" And so now we're probably going to move them to the UK, because he is a UK citizen, where it's faster. But, are you still seeing these kinds of appointment delays?

Diane Butler:

We are seeing some improvements. I attended a round table with state department officials a little while ago, and they expressed their dedication to trying to alleviate the backlogs.

In fact, many immigration lawyers had been discussing trying to send clients to third country locations outside of their own country, and wondering about whether the consulate officers would welcome them, or send them back to their own country.

At the state department round table, they specifically mentioned that it is perfectly fine to send for an individual to go anywhere in the world for a visa appointment. In fact, they rather welcome it as a way to alleviate the backlogs.

Evelyn Ackah:

So even if they're not a resident there, or they don't have citizenship there, they can go any place?

Diane Butler:

Correct.

Evelyn Ackah:

That's really different. That's very good. In Canada, you have to be a resident, the jurisdiction, or a citizen. You can't just choose your port. That's really cool. That's a good thing to know.

Diane Butler:

Yes. Of course, many clients really want to go to Canada for their visa appointments, but it's not so easy. It hasn't been so easy this year, to get appointments in Canada.

I still can't figure it out, because Canadians don't need visas.

Evelyn Ackah:

It's all the other people. It's all the other people coming up from the US. I don't know what it is either. It's all the permanent residents.

Diane Butler:

Yeah.

Evelyn Ackah:

So let's transition then Diane, into talking about remote working and immigration implications. I've done a podcast before, on digital nomads, because we don't have one. And we're just starting to look at the fact that since COVID, people are realizing they can work from anywhere. So a lot of people are travelling, and working remotely from wherever they want.

But Canada and the US don't really have a digital nomad visa. So how do you think this is impacting our ability to grow our economies, or attract immigrants, if we don't have that kind of visa, the remote working one?

Diane Butler:

It's limited. And in the United States under our immigration system, there are additional limitations too. For example, the H-1B category that we've been discussing, the employee cannot move from one metropolitan statistical area to another, much less another state. Without first filing an H-1B amendment to show that the prevailing wage is being paid. And so, that is when limitation...

There also are, as I heard on your podcast about digital nomads, considerations regarding tax withholding, possibly workers' compensation, labor employment, systems that need to be paid into. Considerations about restrictions on terminations, whether there needs to be notice given, or other elements to consider.

And we also are facing a pretty big change in employment laws in the United States. In many local state jurisdictions there are laws for pay transparency rules. Whenever a job is advertised in these locations, these jurisdictions that have implemented these rules, the employer must post the wage they are offering, or possibly a range.

So this is a very, very new development this year. But it is on a rolling start, and going to spread across the United States with very little consistency among jurisdictions. Each one has their own nuances to how that plays out.

Evelyn Ackah:

Why do you think they're doing this? Why do you think we need to have pay transparency from this process?

Diane Butler:

Well, I suppose many would say that in part, it is for diversity issues. To make sure that diverse populations are on notice as to what the offered wage is. It may also be to prompt employers to be fair in their wage payments and attract individuals who are going to be well suited for the position.

And also, to provide transparency, and not having one wage in mind, and then offering a lower wage when they ask, "How much would you accept for this job?"

Evelyn Ackah:

I understand that. Oh my goodness. So isn't there, the L-1B visa for instance, where you have to say where you're going to be working? What have you been seeing with that? Since COVID, how did that play out?

If people were working from home, was there any need to change anything from an immigration perspective? Or was it just accepted that people were not going to necessarily be working at the place you indicated on your L-1B visa application?

Diane Butler:

The enforcement mechanism, there would be an in-person audit or investigation. We haven't been seeing that occurring as much over the past year or so, since COVID. COVID, of course, really put a hamper on that.

But we haven't seen the Immigration Service taking the position that, it's a different location that should have been disclosed, if they're working from home.

Evelyn Ackah:

Okay, well that's good to know. When we bring people from Canada to the US, they love NAFTA L-1s, because the spouse can work. And this is always the challenge. Like, in Canada, any skilled worker who's here, the spouse can work. It's not always the case with the US visas. So, the L-1 is one. But the TNs, they cannot work, right?

Diane Butler:

Correct. Correct.

Evelyn Ackah:

So what are you seeing in terms of that? What does the spouse need to do to be able to qualify, or to be able to get their own employment authorization document?

Diane Butler:

That's one really, really good change from last year. There are a few categories where, due to a lawsuit, when the individual enters the United States, or receives their approval from the Immigration Service, they are now given a designation with an S on the end. So, L-2 is the intercompany spouse category. And then the S will be added to the end, which means that that is all the individual needs to present in order to be eligible to work.

Also, the E-2 Investor Visa now, is in that same situation. The spouse will have the S on the end, and they present that. They used to have to separately apply for an EAD, and that would take half a year or more. So this was quite a positive development in this immigration-

Evelyn Ackah:

Have you seen it working? I mean, I remember when this lawsuit was determined, and the change was made where you could get your designation as a spouse to work. They weren't actually doing them at the airports for a while, at least in Canada. Have you seen them doing that?

Diane Butler:

It's almost the default now.

Evelyn Ackah:

Okay, good.

Diane Butler:

Yes.

Evelyn Ackah:

I'm glad to hear that. So they no longer need to apply for employment authorization documents anymore?

Diane Butler:

Correct.

Evelyn Ackah:

That L-2 with an S is all they need, because it shows they're dependent. But TDs don't get that dependence of TN visa holders, so what do they do? They have to find their own category to fit into, in order to work?

Diane Butler:

Right.

Evelyn Ackah:

Oh, no.

Diane Butler:

Yes, generally. Generally, that's what we do, if possible.

Evelyn Ackah:

It's so difficult.

Diane Butler:

Or they just have to be aware when they are getting the TN status, that the spouse will not be able to work.

Evelyn Ackah:

Yeah. We tell them, but people think it's okay. And then when the economic situation has changed... And look how tough things have been lately for everybody. People are wanting to work and have dual incomes. It becomes more of a priority.

Is it possible... I know I've called you on this before, but I think it's really important. To move somebody from a TN, let's say as a TN engineer. To an H-1B, to a Green Card. Because at the end of the day, they all say they don't want to stay long term, and then all of a sudden, "Oh, I love it here. I want to stay."

And we always tell them the TN is a non-immigrant visa. So how are they making that arc, and is it really realistic?

Diane Butler:

Oh, yeah. And I love the TN category. Sometimes, when we were talking about people being shut out of the H-1B lottery, then we do send them to Canada. We send them to you, so you can help them find a job there. And then, when they get Canadian citizenship, then they can come back on the NAFTA status, USMCA status.

So getting from TN to permanent residency, I usually don't build in an interim H-1B, because it is possible to do it without that step.

So, you're absolutely right. The H-1BS can have what's called dual intent. They can have a temporary job, with the ultimate intent of becoming a permanent resident. TNs are not allowed to have that dual intent. They can only have the temporary intent at the time.

So really, it's a matter of figuring out, "What timeframe are we looking at here?" And from an immigration perspective, it's the timeframe, and the intent, when the individual enters the United States, or signs anything to the Immigration Service.

So when they enter in TN status, so long as they understand that, "Right now, you have status for up to three years. At this particular time, you might have thoughts about, maybe in the future, becoming a permanent resident. But it always has to be, so long as there's some ambiguity and not a definiteness. Like, 'I'm never leaving the United States again.' Then, it is possible to make that transition."

And it is also possible, because Canada's such a great country, and anybody in TN status, if they should lose their job in the United States, would most likely have the opportunity to go back home to Canada, and live and work there.

Evelyn Ackah:

Exactly. Exactly.

Diane Butler:

The reason it works is because the sponsorship is, as we think of it, owned by the employers. So those first two phases that we talked about, the recruitment, filing the immigrant petition, those represent the employer's intent. They do not represent the individual's intent, until we get to the third phase of the process.

So if the employer has driven the process all the way along, then somehow we can generally time it so that the individual TN worker has enough time left to get them to the point of filing for adjustment of status, and then converting to a Green Card.

Evelyn Ackah:

Okay. Wow. So much going on. I think immigration is never boring.

Diane Butler:

Never.

Evelyn Ackah:

Have you been seeing anything in terms of remote work, any problems? Does your firm, Davis Wright Tremaine, advise on... Because it's almost like an overlap between employment law and immigration law.

So what kind of questions are you seeing around remote work and immigration categories for your people?

Diane Butler:

Yeah. Well, Evelyn, I think you and I should start a separate business, which would be just to compile all the rules from all the states and provinces.

Evelyn Ackah:

Oh my God.

Diane Butler:

Because the considerations, they are the jurisdiction specific considerations. Some employers will not allow employees to move to a certain state, because the rules are a bit too onerous for them to comply with.

But one primary consideration, and employers tend to like this. Is that, they absolutely can impose a rule that the individual cannot move to another state, relocate, without prior permission from the employer. And it can be a basis for termination if they make a move and don't notify the employer in advance.

Evelyn Ackah:

Okay. No, that's very helpful. That's very helpful. And we were just talking before we started, about all the layoffs that have been happening from all of these high tech companies. From Meta, to everybody.

So tell me about that. I mean, they must have a lot of foreign workers as well as American citizen employees. What is the impact of being laid off from Twitter, from some of these large social media companies?

Diane Butler:

Yeah. So there are time and considerations. So my understanding is that Twitter has given, about a 60 day notice. And there are US rules about giving a certain amount of notice before a layoff becomes effective.

I'm not certain whether those who have been notified have been relieved of their duties, and have an effective date in the future. But, let's say somebody is in H-1B status, which would be valid until September 30th next year.

So if their termination actually becomes effective, let's say, January 1st, 2023. Then the H-1B rules also allow for up to a 60 day grace period. It's a shorter of 60 days, or the end of your H-1B status. So that individual could have that period of time to try and find a new employer.

And the H-1B rules have fairly liberal provisions for what we call, an H-1B transfer. So if there's a new employer who wants to sponsor somebody who already has an H-1B, that H-1B worker can begin working as soon as the new employer's H-1B petition is filed. They don't have to wait for the approval.

So that's what many H-1B workers who are facing the layoffs will probably be doing.

Evelyn Ackah:

So let's say if they're an L-1, and they've come from another country where they're working for the related entity, and they get laid off. What happens then? Because they're not an H-1B status, and it's based on working for the related entity. What happens to them?

Diane Butler:

It's much more challenging, because the L-1 is tied to the relationship with the US entity, and the entity outside the United States. And there is no L-1 transfer option as there is with an H-1B.

So it might be possible to get into an H-1B status, but there again, they'd be looking at the lottery. And if they're Canadians, they might be able to get into a TN. If their occupation is on the TN list, that's a pretty good option.

A Green Card process could be started, but it will not be far enough along to be of benefit without them having to depart the United States. They might go back to school. I have this whole checklist of things I go through from, "What are the options?"

And the spouse work. "Can the spouse get a TN, or an H-1B, or a different L-1, or an E-2?" Sometimes they might be able to find a Canadian headquartered company that could sponsor them for an E-2.

And if they're in the United States, then they can get into this E-2 Treaty Investor status by a change of status, without having to depart the United States.

Evelyn Ackah:

That's great to know.

Diane Butler:

Eventually they'll need to go home and get a visa from the consulate, but there may be kind of a little quick fix to enable them to remain.

Evelyn Ackah:

Oh my God.

Diane Butler:

So we just have to do a case-by-case analysis and figure out what the options are, based on those five questions that I mentioned at the beginning.

Evelyn Ackah:

Oh my goodness, Diane. You are such a source of information. That's why I call you all the time, and email you, because there's so many moving parts. And obviously, you have a passion for this. You've been doing this for decades, and you are one of the leaders. And you're also involved with AILA, which is wonderful, the American Immigration Lawyers Association.

I would like to thank you so much for joining my podcast, and letting me pick your brain and talk about all these interesting developments. If anybody would like to reach Diane Butler, you can find her at Davis Wright Tremaine in Seattle. She is a partner there and is leading the immigration practice.

And I hope that this will lead to people reaching out to you, because you clearly do know your stuff. And I just want to thank you again for all your support over the years, and for participating in this podcast.

Diane Butler:

Oh, thank you, Evelyn. It's always a pleasure to connect and collaborate with you.

Evelyn Ackah:

Thank you. Okay, bye-bye.

Diane Butler:

Okay, bye.


Evelyn L. Ackah, BA, LL.B.

Founder/Managing Lawyer

Ms. Ackah is passionate about immigration law because it focuses on people and relationships, which are at the core of her personal values. Starting her legal career as a corporate/commercial ...

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