New York Lawyer's Legal Updates

TN Visa: Work Visa For Professionals Holding Mexican And Canadian Citizenship

Author: USA Immigration Lawyer Alena Shautsova

Many non-citizens would like to come to the United States to work legally. The problem is that the United States immigration laws provide for limited number of opportunities for those who would like to work in the United States legally H1B, H2B, J1 and L1 are the most common work visas that one would think of when they're presented with an issue as to how to legally work in the United states. But there is a hidden gem for citizens of Mexico and Canada: it is a TN visa and status for those who will perform professional assignments in the United States. The North American Free Trade Agreement specifies the list of occupations and corresponding educational requirements that one must possess in order to qualify for this opportunity. A TN petition may be valid for as long as three years. Canadians can apply for a TN visa but may instead apply for admission at a port of entry without necessity to go for a consular processing. Mexican citizens have to file for a TN visa at a US consulate abroad. A TN visa is not employer specific and if one changes the employer the TN visa remains valid and until it is expired or revoked. Interestingly enough, I 94-s and notices of action issued by USCIS are employer specific, and one will have to change or add employers by filing I-129 with USCIS. A TN applicant may enter the United states for full time or part time employment. 9 FAM 402.17-5(A)(2).

A TN status can be extended in the United States by filing for an extension of status with USCIS, or ,again, a person may choose to submit an application for a TN status at a port of entry.

Basic Requirements And Challenges To Be Aware Of

The basic requirements to qualify for TN visa would be citizenship of Canada or Mexico. You do not have to be born in this countries, you may acquire citizenship of those countries later and it will be sufficient to qualify for the TN visa. You also need to have a professional assignment in the United States. Finally, you must possess a specialty degree and/or professional license if the duties of your position require you to hold such a license.

Now, the hardest question when we deal with the TN visas is to make sure that the professional assignment in the United states is truly professional and permissible under the NAFTA treaty. The law provides a strict list of occupations that one may hold in connection with the TN visa or status. If a USCIS officer a consular officer, or a CBP officer considers that the person who is seeking TN status of visa is going to perform duties outside of the ones listed in the permissible list of occupations under NAFTA, their application will not be approved. Another challenge sometimes occurs when the decision-making officer disagrees with the applicant as to the educational requirements or licensure requirements necessary to perform the duties of the position listed in the appendix to the NAFTA treaty. Finally a TN visa is a non-immigrant visa. It means that, again you face third challenge: to show that you do not possess an immigrant intent which may be difficult to demonstrate if you have been performing your duties in the United States in the TN capacity for a while.

Professional Degree, License

Apart from the hotel managers, the US immigration laws do not require the degree be directly related to the job. Letter, Puelo, Asst. Comm. Adjudicator, CO 1773-C (Dec. 22, 1989), reprinted in 67 No. 22 Interpreter Releases 639, 655 (June 4, 1990). This degree may also be a three-year degree issued by Canadian university. Another interesting fact is that admission or classification as the US MCA professional does not include licensure in the United states licensed to practice a given profession in the United states is a post entry requirement. 9 FAM 402.17-4(B); 69 FR 60939 (Oct. 23, 2004):

b. Proof of licensure to practice a given profession in the United States may be offered along with a job offer letter or other documentation in support of an application for TN classification.  But admission/classification must not be denied based solely on the fact that the applicant does not already hold a license to practice in the United States.

c. For a TN position as a nurse providing health care services, 22 CFR 40.53(a) requires that in addition to meeting all other requirements of law and regulation, the applicant must have a certification issued by the Commission On Graduates of Foreign Nursing Schools or another credentialing service that has been approved by the Secretary of Homeland Security for such purpose, which certificate complies with the provisions of INA 212(a)(5)(C) and INA 212(r) and the regulations found at 8 CFR 212.15.

However, one cannot be self-employed to hold a TN visa. Here, however, there is a caveat: if one comes to the US to perform work for a US company, who owns an interest in the Canadian company contracted to perform the consultancy may be granted TN status

Educational Requirements

Note that routinely CBP officers misinterpret TN requirements and demand that a TN applicant demonstrates that he/she has specific BA’s degree when the law in fact does not demand that. For example, “software engineers” are included in USMCA, as engineering is not limited to any field. Here, CBP officers have discretion in deciding if applicant’s degree is within the laws’ demands. Officers sometimes require that an applicant holds an Engineering degree rather than a Computer Science degree (industry standard). One must be ready to address this possible issue if he/she seeks admission at the border.

Immigrant Intent

A Tn Visa is not a dual intent visa. It means one must demonstrate that she/he will depart the US upon completion of their assignment. However, there is no time limit as to how many times a TN status may be extended. Interestingly enough, an approved or pending I 140 petition cannot be the sole reason for the denial of the TN visa/status extension. But once a TN holder files for adjustment of status, he/she becomes ineligible for the TN admission. If one is denied TN admission, he/she may be subjected to expedited removal. Note that CBP preclearance office in Canada does not have the authority to use expedited removal under the international agreements! It may be a priceless tip for those who do not want to face a potential 5- year bar in case their TN application is denied and they are issued an expedited removal order!

A final point for wealthy TN holders: a qualifying TN beneficiary, who would like to bring to the US their domestic servant, may file for a B1 visa for them. Note that all local laws with regard to the pay to such a servant must be followed!

If you need help with a TN denial, or application, call us at 917 885 2261 or book your appointment online: here

20 November 2023
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