TN visas are available to both Mexicans and Canadians who move to the United States in order to carry out professional services. Usually these employees work in certain professions and possess specific qualifications and credentials that are needed in order to meet the requirements for the professional fields listed on Schedule 2 of NAFTA. TN visas offer certain advantages when compared to H-1: Temporary Professional Workers and L-1: Intra company Transferees.
Mexican and Canadian Employees Working Under NAFTA
NAFTA is also known as the North American Free Trade Agreement. The agreement was established on January 1, 1994 and allows for Mexican and Canadian workers to work in the United States for a certain period of time without becoming permanent residents. The NAFTA Agreement’s TN classification requirements also sets forth parameters for Canadians admitted into the United States under nonimmigrant classifications.
TN classification requires that Mexican and Canadian professionals work in a field listed in Appendix 1603.0.1 of the NAFTA Agreement. The TN employee must also have the employment qualifications required to perform their specific job. The NAFTA Agreement does not set an annual limit on TN-1 classification admissions from Mexico or Canada.
Petition Requirements – Canadian Citizens
The TN classification does not require Canadian citizens who live outside of the United States to petition for employment or obtain a TN-1 consular visa. The Canadian citizen can apply directly at Class A ports of entry in the United States. The employee must provide a statement from their employer stating a full description of their job duties and the length of their stay in the United States. The statement must also contain the rate of pay or any rewards that the employee will receive while working. The employee must also provide evidence of their Canadian citizenship and offer proof that they meet all educational and licensure requirements for the job they will be performing.
Petition Requirements – Mexican Citizens
The TN classification does not require Mexican citizens who live outside of the United States to petition for employment. However, a Mexican citizen must obtain a TN visa from a United States consulate abroad. In order to obtain a visa, the Mexican citizen will most likely be required to complete an interview at the embassy consular section. Interviews are usually conducted by appointment. It usually takes a few weeks to obtain an interview. Part of the interview requires the applicant to complete an ink-free digital fingerprint scan. The applicant must provide a statement from their employer detailing the nature of their job and how long they will be working in the United States. The statement must also detail how the applicant will be paid and any rewards they may receive during their stay. Applicants must present proof of Mexican citizenship and provide proof that they meet any educational and/or licensure requirements necessary for their job.
In addition to providing proof of citizenship, applicants must complete a Nonimmigrant Visa Application and a Supplemental Nonimmigrant Visa Applications, Forms DS-156, DS-157, and DS-160. Any male applicants between the ages of 16 and 45 are required to complete these forms before they will be allowed to enter the United States. The forms are also required for applicants, both male and female, from state sponsors of terrorism over the age of 15. Applicants will be required to present a valid passport for travel into the United States. The validity date on the passport must extend at least six months beyond the applicant’s expected stay in the United States.
In order to quality for TN classification, the Mexican and Canadian citizens’ intended activity must be one of the professions listed on Schedule 2 of the NAFTA Agreement. Just citing Schedule 2 will not be sufficient. The applicant must provide actual information that proves that they will be performing a job listed on the schedule.
In order to qualify for TN status, the applicant must meet the requirements for a profession listed on Schedule 2. Jobs listed in Schedule 2 usually require a Bachelor’s degree or higher. combining education and work experience is not acceptable under TN status. Applicants wishing to combine work and education to meet the required job standards must apply under H-1 status.
Length of Stay
Pursuant to the NAFTA Agreement, an applicant may be admitted into the United States for a maximum of three years. TN professionals may be eligible to receive extensions of stay in three-year increments. The limit for H-1B applicants is six years. The limit for L nonimmigrants is between five to seven years. Mexican and Canadian citizens who have already completed six years under H-1 and L status may be eligible to to extend their stay under the TN category. Usually the one year abroad requirement is waived under these circumstances.
The only limit to the TN applicant’s status is that their stay must still be classified as temporary. Canadian citizens are allowed to receive six=month visas due to Canada’s reciprocity agreement with the United States. Therefore, Canadian citizens may receive a TN visa for shorter periods of time than what will be required under Form I-797. Canadian citizens are eligible to be admitted into the United States for the full period of their petition approval. Any Canadian citizen who experiences difficulty with this arrangement should request a letter from their employer asking the USCIS border inspector to admit the Canadian citizen into the United States for the full period of their stay.
Staying In The United States Beyond Your Expected Stay
It is vital that foreign workers leave the United Stats on or before the last day they are authorized to be in the country. Failure to depart on time could result in an out-of-status classification by the United States Department of Homeland Security. An out-of-status classification is in violation of United States immigration laws and could hinder any future efforts of travel to the United States. Keep in mind that in accordance with INA 222(g), even staying past one day can result in an out-of-status classification and void your visa. In accordance with United States immigration laws, if you stay past your intended date, your visa is automatically void. This will require you to reapply for a new visa, which must usually be performed in your country of origin.
Nonimmigrant Intent and Permanent Resident Status
TN applicants are not required to show that they maintain a foreign resident during their stay in the United States. However, foreign applicants must prove nonimmigrant intent. A TN applicant’s legitimacy may hinge on their petition and nonimmigrant intent. The United States Citizenship and Immigration Services has stated that they will not consider filing a labor certification application for permanent residency to be indicative of their nonimmigrant intent in certain instances. Unlike H-1B and L applicants, TN applicants are not entirely exempt from a presumption of immigrant intent. If a foreign citizen intends to remain in the United States on a temporary basis, the fact that the applicant has been approved for employment within the United States is not enough to deny their application of admission or extension, however it will be taken into account.
NAFTA Strike Provisions
Anyone seeking entry into the United States under TN status is subject to NAFTA’s strike provision. These provisions provide that if the United States Department of Labor certifies to the United States Citizenship and Immigration Services that the applicant’s place of employment is the subject of a strike or labor dispute and the applicant’s temporary entry into the United States to perform a certain job would affect settlement efforts, the applicant TN petition may be denied. If the strike starts after the applicant’s entry into the United States the applicant will not be forced to leave the country.
Family Members Of TN Applicants
Any family member of TN aliens will be classified under the TD category. Family members include spouses and any unmarried children under the age of 21. While in the United States, family members are not allowed to engaged in employment unless they formally petition for employment. The family members must meet certain specifications in order to qualify for employment. Under TD status, family members will be allowed to take various courses of study while living in the United States.
Choosing TN Status Or An Alternative
A popular alternative to the TN category for applicants seeking entry into the United States for work is the H-1B category. There are, however, many advantages to the TN category. Under the TN category, the United States Citizenship and Immigration Services does not have to approve employer petitions. This exemption speeds up the admission process for Canadian applicants. Further, the six-year limit for H-1B applicants does not apply to TN applicants. Canadian employees who have already completed six years under the H-1 or L status are automatically qualified for the TN category without the one-year abroad requirement. Another advantage is that the United States Citizenship and Immigration Services does not place a cap on the number of TN applicants who can be admitted into the country annually. There is, however, a 65,000 annual cap on those seeking admission under the H-1B category.
List of NAFTA Professions
Any Mexican or Canadian citizen seeking admission into the United States must be engaged in a profession listed on Schedule 2 of NAFTA. Below is a list of professions listed under Schedule 2 of NAFTA, along with the degree and license requirements.
- Accountant:Baccalaureate Degree, Licenciatura Degree, a C.P.A, C.A, C.G.A., or C.M.A.
- Architect: Baccalaureate Degree, Licenciatura Degree, or a state or provincial license
- Computer Systems Analyst: Baccalaureate Degree, Licenciatura Degree, a Post-Secondary Diploma, a Post-Secondary Certificate, and three years of experience
- Disaster Relief Insurance Claims Adjuster: Baccalaureate Degree or Licenciatura Degree and successfully complete training in an appropriate field of insurance adjustment related to disaster relief claims or three years of experience in the field of claims adjustment and successfully complete training in an appropriate area of insurance adjustment related to disaster relief claims
- Economist: Baccalaureate Degree or Licenciatura Degree
- Engineer: Baccalaureate Degree, Licenciatura Degree, or a state/provincial license
- Forester: Baccalaureate Degree, Licenciatura Degree, or state/provincial license
- Graphic Designer: Baccalaureate Degree, Licenciatura Degree, or a Post-Secondary Diploma/Certificate and three years of experience
- Hotel Manager: Baccalaureate Degree, Licenciatura Degree in hotel management, or a Post-Secondary Diploma/Certificate and three years of experience
- Industrial Designer: Baccalaureate Degree, Licenciatura Degree, or a Post-Secondary Diploma/Certificate and three years of experience
- Interior Designer: Baccalaureate Degree, Licenciatura Degree, or a Post-Secondary Diploma/Certificate and three years of experience
- Land Surveyor: Baccalaureate Degree, Licenciatura Degree, or a state/provincial/federal license
- Landscape Architect: Baccalaureate Degree or Licenciatura Degree
- Lawyer: L.L.B, J.D., L.L.M., B.C.L., Five-Year Licenciatura Degree, or membership to a state/provincial bar
- Librarian: Baccalaureate Degree or Licenciatura Degree in addition to an M.L.S. or B.L.S.
- Management Consultant: Baccalaureate Degree, Licenciatura Degree, or five years of experience in consulting or a related field
- Mathematician or Statistician: Baccalaureate Degree or Licenciatura Degree
- Range Manager/Range Conservationist: Baccalaureate Degree or Licenciatura Degree
- Research Assistant: Baccalaureate Degree or Licenciatura Degree
- Scientific Technician/Technologist: Must work in direct support of a chemist, engineer, geologist, geophysicist, meteorologist, physicist, gastronomist, agricultural scientist, biologist, or forest ecologist. The scientist must possess theoretical knowledge of their specific discipline and have the ability to solve practical problems within the discipline or apply principles of the specific discipline.
- Social Worker: Baccalaureate Degree of Licenciatura Degree
- Sylviculturist or Forestry Specialist: Baccalaureate Degree or Licenciatura Degree
- Technical Publications Writer: Baccalaureate Degree, Licenciatura Degree, or a Post-Secondary Diploma/Certificate and three years of experience
- Urban Planner or Geographer: Baccalaureate Degree or Licenciatura Degree
- Vocational Counselor: Baccalaureate Degree or Licenciatura Degree
- Medical/Allied Professional: Most Medical programs require a Baccalaureate Degree or Licenciatura Degree, along with a state/provincial license.
- Scientist: Baccalaureate Degree or Licenciatura Degree
- Teachers at the BA, MA and PhD Level: Baccalaureate Degree or Licenciature Degree
Issues That Might Arise
There are several issues that can arise for applicants seeking admission based on the professions listed in Schedule As mentioned previously, the United States Citizenship and Immigration Services will not allow for a combination of education and experience in substitution for jobs that require a Bachelor’s degree or other specific licensure requirements. If an applicant wants to use a combination of education and experience to fulfill the requirements for a specific job, the foreign applicant must apply under H-1B status. It is important to note that a three-year Bachelor’s degree from Canada will satisfy the United States Bachelor’s degree requirement. It is also important to note the degree requirements and not just the length of the courses of study.
Admission Procedures for Canadian Applicants
On October 1, 2012, the United States Citizenship and Immigration Services began accepting Form I-129 from Canadian applicants seeking admission into the United States under TN status. Form I-129 must be completed by anyone seeking to extend their nonimmigrant stay under TN status. Additionally, anyone seeking to change their stay to TN status must also fill out Form I-129. Canadian citizens can apply for TN status, along with their application for admission, through the United States Customs and Border Protection.
Canadian professionals have the option of entering the United States by providing the required documents at a United States port of entry. Applicants must provide documentation of their designated profession, along with any required educational and licensure requirements. Admissions are usually given in three-year increments.
Admission Procedures for Mexican Applicants
Although they are not required to file a petition, Mexican applicants are required to have a visa prior to entry into the United States. Like Canadian citizens, Mexican citizens will receive admission in three-year increments.
TN Application Denial
If the consular office denies an application for a TN visa, the applicant has the option of applying again. The application should provide any new evidence that may help them to overcome the basis for their initial denial into the United States.