Under the North American Free Trade Agreement (NAFTA), qualifying Canadian and Mexican citizens may enter the United States to work at a professional level for a temporary duration as TN non-immigrants. TN status permits these aliens to work for employers in the United States. Chapter 16 of NAFTA and 8 CFR §214.6 (Appendix 1603.D.1), as amended, govern the regulations concerning TN status. TN status can be granted for a period of one year and can be extended in one-year increments. There is no limit to the number of years a person can remain in the United States in TN status, as long as the Canadian or Mexican citizen maintains “nonimmigrant intent”. That is, he has no intent to remain permanently in the United States. In addition, there is no limit to the number of TN visas that may be issued in any given year.
TN status is available only to Canadian and Mexican citizens who have job offers in the United States. Therefore, it is not available to Canadians or Mexicans wishing to engage in self-employment. NAFTA lists sixty-three professions available for TN status. To obtain such a visa, the offered position must fall within these listed professions, and the Canadian or Mexican citizen must meet the specified educational and experience requirements.
Each listed profession is tied to minimum requirements. However, there is an exception to this requirement: Canadian and Mexican citizens may also enter the United States with TN status to perform temporary training assignments relating to a profession listed in Appendix 1603.D.1. One such example is conducting seminars. The following professions qualify for TN visa:
Management Consultant and Scientific Technicians
These professional designations are particularly scrutinized by USCIS because neither requires the applicant to hold a degree, and they do not contain specific experiential requirements. They are, therefore, subject to abuse due to their broad NAFTA definitions. Management consultants are defined as individuals engaged in services that are directed towards improving the managerial, operating and economic performance of public and private entities. They achieve this by analyzing and resolving strategic and operating problems, thereby improving the entity’s goals, objectives, policies, strategies, administration, organization and operations. A scientific technician “must be seeking temporary entry for work to directly support a professional (an engineer, physician, etc.) in such fields as agricultural sciences, astronomy, biology, chemistry, engineering, forestry, geology, geophysics, meteorology or physics.”
NAFTA limits this profession to positions relating to teaching and research. It does, though, allow the applicant to provide incidental patient care if it is required as part of the research. For example administering medication and observing its effects as part of the research.
Neither software engineers nor programmers are explicitly included in the professions listed in Appendix 1603.D.1. The only listed category that specifically refers to a computer professional is that of computer systems analyst, which, although the requirements of this position can vary greatly, also includes duties performed by quality assurance analysts, software developers and software engineers. The job description does not include the duties performed by computer professionals who are essentially programmers and perform little or no systems or software analysis. Currently, with very few exceptions, those who are considered to be only programmers are not eligible for TN status. Software engineers may also fall under the engineer category. However, to use this category, they must hold relevant engineering degrees and, in certain cases, state licenses.
Actuaries are not currently included on the Appendix 1603.D.1 list. Actuarial work, however, cannot be performed without a bachelor’s degree in mathematics, actuarial science or statistics. Therefore, they usually qualify under the mathematician category.
Beneficiaries and Employers
TN status is not available to non-citizen residents of Canada or Mexico, nor is it available to Canadians or Mexicans wishing to engage in self-employment (although there is a limited exception for management consultants entering the United States to perform services for a particular employer or to work on a specific project). Each profession under NAFTA has specific educational and experience requirements with which the beneficiary must comply. Most professions require the applicant to hold a relevant license based or baccalaureate degree. A licenciatura degree is normally a five-year program. If a bachelor’s degree is required, then it need not have been gained in a four-year program, but could have been gained in a Canadian three-year bachelor’s degree program. No educational evaluation is needed for a degree from Canada, Mexico or the United States. Some professions allow post-secondary diplomas and certificates, plus three years of experience. There are also a few listed professions that permit a TN applicant to qualify with a state or provincial license. In addition, an applicant for a TN visa may also qualify with a certain level of knowledge or years of relevant experience.
Canadian or Mexican citizens may enter the United States to work part or full time for an American firm or organization. The applicant, however, cannot be the owner or founder of an organization that petition for TN employee.
USCIS will deny a TN application if there is a strike or other labor dispute in progress, or if the Secretary of Labor finds that the entry of the Mexican or Canadian citizens with TN status may adversely affect the settlement of a labor dispute or employment of any person involved in the dispute. USCIS may suspend an approved TN petition if the visa holder entered the United States but has not started working at the time designated in TN visa application.
Derivative Beneficiaries. Spouses and dependent, unmarried, minor children accompanying or following to join TN professionals may apply for trade dependent (TD) status. Dependents who are in the United States must follow the procedure to change their status. A spouse or child admitted with TD status should receive an I-94 card with a “multiple entries” notation. Also, please note that they may not accept employment unless otherwise authorized.
TN applicants may extend their stays for a period of one year. There is no limit to the number of extensions or years a TN non-immigrant may remain in such status in the United States. Nevertheless, it must be noted that USCIS may deny the TN visa if a consular or USCIS officer finds that the applicant no longer has “nonimmigrant intent”.
TN professionals working for American (not foreign) employers may apply for an extension of status on Form I- 129, with the required documentation and request for extension of status. The beneficiary must be in the United States at the time of filing. If the Canadian beneficiary must leave the United States during the pendency of the extension request, then the petitioner may request USCIS to cable notification of approval to the port of entry. A Mexican may have his approval notice cabled to an American consulate. Canadian citizens may alternatively apply for a new TN admission (for another full year) at the port of a foreign employer, along with the required supporting documentation. In addition, the applicants may expedite the processing using USCIS’ premium processing option.
Change or Addition of American Employer and Intercompany Transfers
Individuals in TN status who seek to change or add American employers during the period of initial admission may have them file I-129s with USCIS, or by applying at a port of entry or United States consulate if the applicant is Mexican. A TN holder wishing to change or add an employer is not authorized to work for him prior to USCIS’ approval. An American employer may transfer his Canadian or Mexican employees in TN status to another branch or office to perform the services described in the application. Neither a new application nor other action is required. If, however, the TN employee is transferred to a separately incorporated subsidiary or affiliate, a new TN application must be filed.
To qualify for TN status, the applicant must demonstrate that he does not intend to remain in the United States permanently. Furthermore, the two-year, home-residency requirement called out in INA §212(e) does not prevent otherwise qualified applicants from obtaining TN or TD visas.
TN visa provides an excellent opportunity for the U.S. employers to hire professionals from Mexico and Canada under NAFTA and thus avoid stringent document requirements and visa quotas mandated by the H-1B visa.