The U.S.-Canadian Social Security Agreement Explained
The U.S. and Canada have a Totalization Agreement that improves Social Securityprotection for people who work or have worked in both countries. Following arehighlights of the agreement:
• If your work is covered by both the U.S. and Canadian Social Security systems, then you and your employer would normally have to pay Social Security to both countries for the same work. However, the agreement eliminates this problem. If you work as an employee in the U.S., then you would normally be covered by the U.S. Social Security system and your employer will only have to pay U.S. Social Security taxes. If you work as an employee in Canada, you will normally be covered by Canadian Social Security and your employer will pay Social Security contributions only to Canada.
• In order to prove your exemption from paying Social Security taxes in either Canada or the U.S., you will need to obtain a form from the country where you are covered to prove your exemption from coverage in the other country. You will need a certificate only if you are working in the other country more than 183 days in a calendar year or the country requests it.
Certificates of Coverage for Canadian Employers to Establish Exemption from U.S. Social Security Taxes
If you need the certificate of coverage, your employer will need to request it from the U.S. by writing to:
Social Security Administration
Office of International Policy
P.O. Box 17741
Baltimore, MD 21235-7741
U.S.A.
The form request may also be sent by fax to 410-966-1861.
The request must be in writing and must provide the following information:
- full name of worker
- worker’s date and place of birth
- citizenship- country of worker’s permanent residence- U.S. Social Security Number
- date of hire- country of hire- name and address of the employer in the U.S. and Canada
- date of transfer and anticipated date of return
- whether you remain an employee of the U.S. company while workingin Canada or if you became an employee of the U.S. company’s affiliate of Canada. (If you become an employee of an affiliate, your employer must indicate if the U.S. company has an agreement with IRS under § 3121(l) of the Internal Revenue Code to pay U.S. Social Security taxes for U.S. citizens and residents employed by the affiliate, and if yes, the effective date of the agreement).
A special online request form is also available at www.socialsecurity.gov/coc.Only an employer can use the online form. A self employed person must use mailor fax.
Certificates of Coverage for U.S. Employers to Establish Exemption fromCanadian Social Security Taxes
If your work will remain covered by the Canada Pension Plan, obtain form CPT56A from:
CPP/EI Rulings Department
Department of National Revenue
Seventh Floor
333 Laurier Avenue West
Ottawa, Ontario
CANADA K1A OL9
If your work will remain covered by the Quebec Pension Plan, obtain formQUE/USA 101 from:
Bureau des ententes de sécurité sociale
Réédes rentes du Québec
1055, René-Lévesque Est, 13e étage
Montréal, Québec
CANADA H2L 4S5
The same information required for a certificate of coverage from the U.S. isrequired to get a certificate from Canada or Quebec except that you must provideyour Social Insurance Number rather than your U.S. Social Security Number.
• The effective date of coverage under the agreement will normally be the date you began working in the other country. U.S. employers must retain the certificates issued by the Canadian government in case of an audit by IRS. The U.S. Social Security Administration will issue copies of the certificate to both employer and employee; Canadian employers and employees are required to furnish copies of the certificate to Canadian or Quebec authorities when requested to do so.
For additional information about how self-employed individuals can apply for coverageunder the totalization agreement; and about how public benefits are calculated under theagreement, visit http://www.ssa.gov/international/Agreement_Pamphlets/canada.html.
Selective Service Requirements and Immigration
The Military Selective Service Act, available at http://www.sss.gov/PDFs/MSSA-2003.pdf, requires that all male U.S. citizens aged 18 to 26 must register for selectiveservice, thus subjecting themselves to military service in the event that a draft isreinstated. Under the Act, Permanent Resident males between ages 18 and 26 must alsopresent themselves to a U.S. post office designated for registration within 30 days afterentering the U.S. as a permanent resident. For aliens who apply for permanent residenceusing Consular Processing, consular officers require immigrant visa applicants within theappropriate age range to sign Form DS-1810, available athttp://www.usemb.gov.do/Consular/DS-1810-e.pdf, notifying them of their requirementto register for selective service. For aliens who adjust status to permanent residence,USCIS uses form I-485 to effect automatic registration for selective service of aliens whoare required by law to register.
Nonimmigrant males are specifically exempted from Selective Service registration solong as they maintain their nonimmigrant status. However, parolees, refugees, andasylees are required to register.Non-citizens illegally present in the U.S. are alsorequired to register.
Permanent Residents who are required to register with Selective Service but fail to do sosubject themselves to the following immigration consequences:
- A finding that the alien lacks the “good moral character” required for naturalization to U.S. citizenship.
In order to be eligible for citizenship,the naturalization applicant must have been a person of “good moral character” for the 5 years immediately preceding his application for citizenship. If within those 5 years the alien was required to register with Selective Service and knowingly and willfully failed to do so, then USCIS takes the failure to register into account in determining whether the alien has good moral character. USCIS presumes that any failure to register is knowing and willful. If the alien can overcome this presumption, he is still eligible for citizenship.
On the other hand, for aliens filing naturalization applications when over age 30, the requirement to register ended over 5 years prior to the filing of the application. Therefore, the 5-year statutory time period generally considered for determining good moral character would have passed. While USCIS is permitted to look at conduct that occurred prior to that date, officers generally only take into account conduct that occurred prior to the 5-year period if it reflects on the alien’s current moral disposition. Generally failure to register for Selective Service is no longer a problem in terms of a “good moral character” determination once the alien reaches age 30.
- Permanent ineligibility for citizenship.
A mere failure to register for Selective Service does not make an alien permanently ineligible for citizenship. However, an alien who has applied for exemption or discharge from military service on the ground that he is an alien is permanently ineligible for citizenship. The only exception to this rule is for aliens exempt from U.S. military service pursuant to the exercise of rights under a treaty who, before the time of the exercise of such rights served in the Armed Forces of a foreign country of which he was a national.
Aliens who are permanently ineligible for citizenship are also inadmissible as immigrants to the United States.
Visa and Travel: Is My Business Visa Valid After I Change Employers1?
INS published a memo in 1997 stating that H, L, O and P nonimmigrant visas remainvalid even after an alien changes employers in the United States, so long as the newemployment is in the same nonimmigrant status. This means, for example, that if an H-1B nonimmigrant enters the U.S. on a visa approved for employment with Xerox , he cango to work for General Motors after a new H-1B petition has been filed on his behalf. Hecan then travel in and out of the U.S. using the old H-1B visa. The alien’s new employerdoes need to file a new petition on his behalf, but the alien does not need a new visa inhis passport.
With limited exceptions2, aliens who change employers must have a new approvedpetition before they can begin working for the new employer, even if the employment isin the same nonimmigrant category (e.g. H-1B or L-1). The new petition would be filedon Form I-129 with USCIS. However, a new nonimmigrant petition is not the same thingas a new nonimmigrant visa. Petitions are filed by mail with USCIS and confernonimmigrant status on an alien. The type of status that an alien maintains in the U.S.
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1 Note that this article does not apply to Canadian citizens, who are visa exempt.2 §105 of the American Competitiveness in the Twenty-First Century Act provides that H-1Bnonimmigrants may begin working for a new H-1B employers as soon as that new employer files a“nonfrivilous” H-1B petition on the nonimmigrant’s behalf. determines the type of employment activities in which he is allowed to engage. Withlimited exceptions, status must be maintained for the duration of an alien’s stay in theUnited States3. A nonimmigrant visa is not the same thing as status. It is merely an entrydocument stamped in one’s foreign passport by a U.S. Consulate abroad45. An alien isonly required to have a visa in his passport in order to make an initial entry to the UnitedStates or to re-enter the U.S. after travel abroad. Once an alien has been admitted on avisa, he does not need to renew the visa unless he wishes to travel abroad and afterwardsreturn to the United States. He need only maintain his nonimmigrant status in the U.S.
Customs and Border Protection Limits Times and Places At Which Canadians Can Submit L-1 Petitions at Ports of Entry
The Customs and Border Protection office in Buffalo, New York issued a memo on June8, 2004 stating that starting on June 14, 2004, the following locations and times aredesignated for adjudication of L-1 petitions:
Rainbow Bridge, Niagara Falls, New York: Monday through Saturday 9:00 AM through 4:00 PM
Peace Bridge, Buffalo, New York: Monday through Saturday 8:00 AM through 3:00 PM
Applications made at other times and locations in the Buffalo, NY area will generally notbe accepted. Note that this applies only to ports of entry in the Buffalo region. All L-1applications will now be adjudicated by NAFTA specialists assigned at these times andlocations. A copy of the memo is being sent as a separate pdf file with this newsletter.
I Am On a Work Visa: Can My Spouse Work?
Many nonimmigrants enter the U.S. on work visas and bring their families with them in“dependent status.” To date, the only nonimmigrant categories that permit spouses independent status to work in the U.S. are spouses of L-1 and E nonimmigrants. Spousesauthorized to work in dependent status can file form I-765, application for EmploymentAuthorization, at any time after approval the principal applicant’s E or L petition. The I-765 can also be filed concurrently with an application to extend the spouse’snonimmigrant status. E and L dependent spouses who obtain employment authorization
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3 Aliens can sometimes go out of status and still be lawfully present in the United States. For example, analien who files a timely application to extend their stay or to change status in the U.S. may go out of statusif their previous status expires while their extension of change of status is pending. However, for as longas the application to extend or change status is pending, the alien is considered lawfully present in theUnited States. Once the extension of stay or change of status is approved, the alien’s lapse of status isforgiven.
4 A visa can also be stamped in one’s passport by the Visa Revalidation Office in the United States in somecases.
5 See the article “Is That a Visa In My Passport?” in Volume 3, Issue 2 of Immigration Newswire for an indepth explanation of the difference between a visa and status. may work in any occupation in the U.S. This benefit does not extend to the children of Eand L nonimmigrants.
No other employment based nonimmigrant statuses (e.g. H-1B, TN, or R-1) permitdependent spouses to work in the U.S. Spouses of those nonimmigrants can only work ifthey independently qualify for, and obtain, a nonimmigrant status for which employmentis authorized.
There is one limited situation in which the spouse of an H-1B nonimmigrant could beemployed in the U.S. H-1B nonimmigrants are permitted to maintain their nonimmigrantstatus while they have an I-485 Adjustment of Status application pending with USCIS.Once the adjustment of status application has been filed for the dependent spouse, s/hemay apply for employment authorization. Once the spouse uses employmentauthorization, s/he would no longer be in H-4 dependent status. Her status would beconsidered “pending permanent residence applicant.” However, the principal H-1Bholder could maintain H-1B status for the duration of the pending application whilehis/her spouse changes status so that s/he can work.
