New Opportunities for Immigration Through Investment in the US May Be Expanding

The Director of the Department of Homeland Security, Janet Napalitano, and the Director of U.S. Citizenship and Immigration Services, Alejandro Mayorkas, are promoting “a series of new policy, operational and outreach efforts that will help fuel the nation’s economy and stimulate investment by making it easier for high-skill immigrants to start and grow companies and create jobs here in the United States.” Meanwhile, Congressman Zoe Lofgren introduced the Immigration Driving Entrepreneurship in America (“IDEA”) Act. The efforts to spur foreign investment are gaining interest and some traction.

Crossing Borders — Dodd-Frank Law Expands SEC Foreign Reach

As most business leaders know, the United States enacted a comprehensive financial regulatory scheme this past summer in response to the recent financial meltdown. The law, known as the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”), has several provisions related to the ability of the U.S. government to prosecute fraud occurring outside the U.S. and the ability of whistleblowers to report that fraud. In terms of fraud related to conduct occurring outside the U.S., the U.S. Supreme Court recently issued an opinion that limited the ability of the U.S. Securities and Exchange Commission (“SEC”) to reach securities fraud not related to a company or stock traded on a U.S. stock exchange. In response to this decision, Congress inserted provisions into the Dodd-Frank law that restored the SEC’s ability to investigate fraud occurring outside the U.S. Specifically, the SEC has the ability to investigate and bring enforcement actions under the antifraud provisions of its securities law for “conduct occurring outside the U.S. that has a foreseeable substantial effect within the U.S.,” and “conduct within the U.S. that constitutes significant steps in furtherance of the violation, even if the securities transaction occurs outside the U.S. and involves only foreign investors.” Thus, cases can be brought against a company even if the company is not listed on a U.S. stock exchange, even if the transaction is not a transaction done on a U.S. stock exchange, and even if the investors are not U.S. investors.

Canada’s Clean Energy Sector Likely to See Pluses and Minuses From the U.S. Mid-Term Elections

As the dust is still settling from the November 2 mid-term elections in the United States, Canadian businesses may be picking up mixed signals about the future for developing and selling clean energy to the U.S. While the ascendance of a Republican majority in the U.S. House of Representatives means that no federal legislation regulating greenhouse gases is likely to be passed in the next couple of years, the resounding defeat of a California ballot measure intended to stop implementation of that state’s climate change law sends a signal that regional efforts, particularly the Western Climate Initiative, remain alive and moving forward.

Legal Considerations for Internet Advertising Targeting U.S. Customers

The Internet is connecting workers, markets, advertisers and contractors from all around the world. We are on Skype, Twitter, LinkedIn and Facebook nearly every day visiting with clients and friends worldwide. One of the most recent trends is the increase in microtargeted electronic advertising by both domestic and international organizations. For example, one can microtarget a particular demographic in a specific geographic region using ads through Google and Facebook. With this new form of electronic globalization comes a fresh set of legal issues to be considered.

FAA Issues Final Rule — Comprehensive Changes to Aircraft Registration Requirements

Many Canadian businesses are affected by U.S. aviation regulations – either directly through U.S.-subsidiaries that operate aircraft in the U.S., or as lenders to U.S. aircraft-financing customers. The U.S. Federal Aviation Administration (“FAA”) very recently enacted a “game changer” regulation that significantly and substantially changes the registration procedures for U.S.-registered civil aircraft.

Immigration Inquiries for Canadians

Canadians who seek immigration status to work or live in the United States have a special inquiry option for information. U.S. Citizenship and Immigration Services (“USCIS”), an agency under the Department of Homeland Security, has established a general inquiry e-mail box for customers in Canada: Canada@dhs.gov. For customers in the United States, an 800 number is available through the USCIS National Customer Service Center: 1-800-375-5283. USCIS created the inquiry e-mail to provide better customer service for Canadians outside the United States.

U.S. Tax Relief for Canadians Emigrating to the United States

Canadians moving from Canada to permanently settle in the United States should take note of recent Internal Revenue Service (“IRS”) guidance providing relief from U.S. federal income taxation.

DRAM Class Proceeding May Impact U.S. Companies Doing Business in Canada

In Pro-Sys Consultants v. Infineon Technologies AG, the British Columbia Court of Appeal recently issued a decision that may have significant implications for U.S. companies doing business in Canada. Though Canada has competition laws similar to those in the U.S., there have been few class actions following in the wake of Canadian government investigations of cartel activity. The common supposition has been that Canadian courts were less hospitable to such class actions than the U.S. courts.

Conducting Business with Hybrid Tax Entities Between the United States and Canada: The Impact of New Paragraph 7 to Article IV of the U.S.-Canada Income Tax Treaty

The Fifth Protocol (the “Protocol”) to the U.S.-Canada Income Tax Treaty (“Treaty”) entered into force on December 15, 2008. The Protocol is generally effective for tax years beginning on or after January 1, 2009; however, certain provisions of the Protocol have a delayed effective date, including Paragraph 7 of Article IV, which is effective beginning January 1, 2010.

The Protocol makes significant changes to the tax treatment of hybrid tax entities used to conduct cross-border activities. These changes to the Treaty necessitate a review and reassessment of cross-border structures used by U.S. persons to conduct business or make investments in Canada.

View full article (PDF).

TN Status Expanded from One Year to Three Years

U.S. Citizenship and Immigration Services (“USCIS”) is expanding the validity period of Trade-NAFTA (“TN”) status from one year to three years. TN status comes from the North American Free Trade Agreement (“NAFTA”) among the United States, Canada and Mexico. TN status is available for professional workers from Canada or Mexico to work temporarily in the United States. TN status is available to professional workers from Canada or Mexico. Three years is the same period of time that USCIS currently may grant to H-1B specialty occupation workers. The rule cleared the Office of Management and Budget on September 10, 2008, and publication is expected soon. View full article (PDF).

New Protocol to the United States-Canada Income Tax Treaty

As anticipated, the United States Department of Treasury and the Canada Department of Finance signed the 5th Protocol (“Protocol”) to the existing income tax treaty between the United States and Canada (the “Treaty”) on September 21, 2007. The Protocol is expected to be ratified by both countries before the end of 2007 and become effective on January 1, 2008. Once ratified, the Protocol will positively affect cross-border transactions between the United States and Canada. Among a number of changes to the Treaty, the following are significant changes that benefit U.S. taxpayers. View full article (PDF).

New Passport Rules for Air Travel – Guidelines and Frequently Asked Questions

Starting January 23, 2007, all travelers flying to or from the United States must carry a passport, or one of a few alternative documents, as evidence of citizenship and identity. This is a change to the law that previously allowed travel between the United States and Canada, Mexico, and the Caribbean with documentation of citizenship other than a passport, such as a birth certificate. Following are answers to some questions about the change. View full article (PDF).

Don’t Go to Canada With Just a Driver’s License

Headed to Canada? Take along more than just your driver’s license, or plan on spending time with the Immigration officers explaining your citizenship. View full article (PDF).

Commuting to the United States as a Permanent Resident

Generally, a foreign national who is a permanent resident of the United States must reside permanently in the United States or else risk losing permanent resident status. However, persons who have been granted U.S. permanent resident status can live in Canada or Mexico, even though they have no actual residence in the United States, without losing permanent resident status or a “green card” if they commute regularly to employment in the United States. Such persons are considered to be “alien commuters” or “green card commuters.” View full article (PDF).