U.S. IMMIGRATION SYSTEM | NON-IMMIGRANT | TN

The TN nonimmigrant category was created by Congress to implement America’s obligations under the North American Free Trade Agreement (NAFTA) with Canada and Mexico. Thus, the TN category is limited to citizens of Canada and citizens of Mexico only. The one difference between TN for Canadians and TN for Mexicans is that a Canadian citizen is not required to apply for a TN visa in his or her passport prior to coming to the United States. (For most nonimmigrant categories, Canadian citizens do not require a visa in order to proceed to a port of entry to apply for nonimmigrant status). Thus, a Canadian citizen who is approved for TN classification does not receive a “TN visa” but rather receives “TN status.” A Mexican citizen must obtain a TN visa from a US Embassy or Consulate before entering the United States and being admitted into TN status.

Occupations Suitable for TN Classification

The TN classification is similar to the more commonly sought H-1B classification for occupations that require a Bachelor degree in a particular field. However, the requirements of the two categories are not the same. TN classification is available only for those categories of occupations that are specifically listed in an Appendix to NAFTA and which is reproduced in the USCIS regulations (for ease of reference, the full list of occupations may be viewed on the official NAFTA website at http://www.nafta-sec-alena.org/DefaultSite/index_e.aspx?DetailID=167#Ap1603.D.1 )

Most of the listed TN occupations require the applicant possess the Canadian or Mexican equivalent to a US Bachelor degree, which is why the TN category is often thought of as an alternative to the H-1B visa. For positions such as Engineers, the Bachelor degree requirement for TN classification is the same as for H-1B classification.

However, many positions that require a Bachelor or higher degree and thus make for proper H-1B classifications (such as Audiologists) are not listed in the Appendix to NAFTA and thus are not eligible for TN classification. Conversely, the TN list contains several occupations that require less than a full Bachelor degree (such as Nurses, Scientific Technicians, and Management Consultants), as well as occupations that might require a Bachelor degree but can also be performed with a lesser degree if combined with sufficient work experience (such as Graphic Designer or Industrial Designer). Thus, even if an occupation has customarily been approved for H-1B classification, it does not guarantee that TN classification can and will be approved.

Faster Adjudication Times Than Most Temporary Employment-Based Visas

The TN category was designed to facilitate the quick transfer of professional-level business personnel amongst the three NAFTA signatories (Canada, United States & Mexico). Thus, TN classification does not require the sponsoring US employer to first obtain approval of a Form I-129 petition from USCIS, as do most of the other employer-sponsored temporary employment categories (H-1B, O-1, P-1 and most L-1 cases, excepting Canadian and Mexican L-1s under NAFTA as well). This can save time as well as cost, since the substantial USCIS filing fees that apply to H-1B petitions do not apply in TN cases.

Canadian professionals seeking TN status may therefore proceed directly to the US-Canadian land border to apply to US Customs and Border Protection (CBP) for TN status. Alternately, they may choose to apply at the CBP “pre-flight inspection” stations located in many major Canadian airports with regular flights to the United States. In the case of pre-flight inspections, it is recommended to arrive at the airport at least an hour or two even earlier than normal for an international flight, to allow time for the CBP pre-flight inspection officers to process the TN application request. While the request for TN status does not have a specific application form, the possibility of denial and missing a scheduled flight mandates that TN application packages be well-prepared, thoroughly documented and properly summarized to permit CBP to quickly review the relevant facts about the job offered and make a decision on the spot. In the alternative, and while not required, employers have the option of first filing a Form I-129 petition with USCIS to obtain approval for TN classification that may ease the admissions process at the border.

Mexican professionals seeking TN status may apply directly to a US Embassy or Consulate using the standard nonimmigrant visa application forms. US Embassies and Consulates must process hundreds of nonimmigrant visa applications a day, and therefore just as for Canadian TN applications, it is highly recommended that the TN visa application package be well-prepared, thoroughly documented and properly summarized to allow a favorable determination to be made quickly.

Length of Status

USCIS has increased the period of time for which TN status is granted from one-year at a time to three-years at a time. This makes the TN category more attractive than in the past, when TN status had to be renewed every year. The rule change granting TN status in 3-year increments makes the TN category more similar to the H-1B category, because H-1B status is granted in increments of up to 3 years at a time.

No “Dual Intent”

This is a crucial difference between the TN and H-1B categories: the requirement of nonimmigrant intent (intent to return to the home country). An applicant for TN classification must convince CBP (in the case of a Canadian applicant for TN status) or the US Embassy/Consulate (in the case of a Mexican applicant for a TN visa) of his or her intent to return to the home country at the end of the employment. While perhaps not common, TN classification is sometimes refused on this ground, and thus it is important to keep in mind that the concept of “dual intent” which is applicable to H-1B status and visa applicants is not imported to the TN category. (In the rule that extended TN status from one-year-at-a-time approvals to three-years-at-a-time approvals, USCIS reaffirmed that the TN category does not allow for dual intent.)

No Total Time Limit on TN Status

On the other hand, it should be noted that TN status has no definite total limit, in contrast to the six-year limit on H-1B status. Because the H-1B “cap” makes H-1B visas unavailable for most of each year (and even during the cap-filing cycle an H-1B number is not guaranteed to be issued due to the demand for H-1B visas exceeding the supply), some employers find the TN category a useful “stop-gap” to permit the temporary employment of a Canadian or Mexican professional for a few years until a change to H-1B status is successfully made.

Aronson & Associates, P.A.
1221 Nicollet Mall Suite 506
Minneapolis, MN 55403
Tel: 612-339-0517
Fax: 612-349-6059
info@aronsonimmigration.com

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