TN Status for NAFTA Professionals (Citizens of Canada and Mexico)

• Introduction: TN Status for NAFTA Professionals
• Statutory Background for TN Status
• Applying for TN Status
  • For Canadian Citizens
  • For Mexican Citizens
• Evidentiary Requirements
  • Proof of Citizenship
  • Qualifying Professions
  • Offer of Employment
  • Nonimmigrant Intent and Other Grounds of Inadmissibility
  • TD Dependents
  • B1 Domestic Employee of TN
  • Not Subject to the Home Residency Requirement
• Admission as a TN
• Extension of Stay
• Change or Addition of Employers
• Strikes and Labor Disputes
• Conclusion: TN Status for NAFTA Professionals

 

Introduction: TN Status for NAFTA Professionals

The North American Free Trade Agreement (NAFTA) created the special TN nonimmigrant category for certain professionals from Canada and Mexico seeking to work in the United States. Canadian citizens are generally eligible to be admitted on TN status without a visa, whereas Mexican citizens must obtain a TN visa to be admitted in TN status. The spouse and child(ren) of a TN nonimmigrant are eligible for TD status as derivatives. This article will look at the relevant statutes, regulations, and agency guidance to explain the rules for qualifying for and maintaining TN and TD status.

Statutory Background for TN Status

The pertinent statutory provisions for the TN category are found in section 214(e) of the Immigration and Nationality Act (INA). Section 214(e)(2) allows for the admission of a citizen of Canada or Mexico, and the spouse and child(ren) under 21 years of age of such a citizen, to be admitted to engage in business activities at a professional level.¹

Applying for TN Status

For Canadian Citizens

Canadian citizens do not generally need to obtain a TN visa in order to enter the United States on TN status. Rather, Canadian citizens may apply for a TN visa directly at a Customs and Border Protection Class A Port of Entry (POE), at a U.S. airport handling international traffic, or at a U.S pre-clearance/pre-flights station. Please follow this link to find the list of POE's that are designated for optimized TN processing.

The prospective employer of a Canadian citizen must file a Form I-129 petition on behalf of an employee so that he or she can obtain a TN visa to work in the United States if the applicant seeks to change from a different nonimmigrant status to TN status without departing the United States. 9 FAM 402.17-6(a)(1) instructs consular officers to issue a TN visa to a qualified Canadian citizen or a TD visa to his or her dependents upon request.

Canadian citizens who are in a third country, however, must apply for a TN visa at a consulate abroad of for admission at a U.S. pre-clearance/pre flights station. The same applies for their dependents.

Canadian citizens who are dependents of a principal TN nonimmigrant are eligible for TD status without obtaining a TD visa and may apply at a CBO port of entry. Dependents of principal Canadian TN nonimmigrants who are not Canadian citizens should check with the DOS to ascertain whether they will need to obtain a TD visa before seeking admission. The TD visa for such a dependent would be issued on the Canadian reciprocity schedule [9 FAM 402.17-11].

For Mexican Citizens

Mexican citizens are required to obtain a TN visa at a Mexican consulate before seeking admission. This also applies for TD dependents of Mexican citizens on TN status.

However, Mexican citizens applying from abroad are not required to obtain an approved Form I-129 petition or labor certification.² A Mexican citizen applying for change to TN status in the United States must have a Form I-129 petition filed on his or her behalf.

Evidentiary Requirements

Proof of Citizenship

Having Canadian or Mexican citizenship is a requirement for TN status. Permanent residents of Canada or Mexico are ineligible to enter the United States on TN status.

9 FAM 402.17-6 instructs consular officers that citizens of Mexico are required to present a valid passport at the consulate as proof of citizenship.

Because Canadians are not required to procure a visa in order to obtain permission enter the United States, they may provide secondary evidence to prove citizenship if they are applying at a consulate (such as a birth certificate). However, 8 C.F.R. 214.6(d)(3)(i) requires that a Canadian who is traveling from outside of the Western hemisphere must present a valid passport to prove citizenship.

9 FAM 402.17-6(a)(2) notes that a Canadian who does not have TN status and who resides in a third country with a non-Canadian spouse or children, but who plans to enter the United States as a TN NAFTA professional simultaneously with his or her family member(s), must obtain a TN visa in order for those family members to obtain TD status.

In either of these situations, a Canadian seeking entry into the United States must present a valid and unexpired passport.

Qualifying Professions

In order to work in the United States on TN status, the Canadian or Mexican citizen must be seeking entry as a business person at a professional level in a qualifying field. The list of professions and their requirements are found in Appendix 1603.D.1. to Appendix 1603 of NAFTA (also listed in 8 C.F.R. 214.6).

The following is the list of qualifying professions and the minimum level of educational attainment required in order to qualify for TN status:

1. A business person seeking temporary entry under this Appendix may also perform training functions relating to the profession, including conducting seminars.
2. “State/provincial license” and “state/provincial/federal license” mean any document issued by a state, provincial or federal government, as the case may be, or under its authority, but not by a local government, that permits a person to engage in a regulated activity or profession.
3. “Post-Secondary Diploma” means a credential issued, on completion of two or more years of post-secondary education, by an accredited academic institution in Canada or the United States.
4. “Post-Secondary Certificate” means a certificate issued, on completion of two or more years of post-secondary education at an academic institution, by the federal government of Mexico or a state government in Mexico, an academic institution recognized by the federal government or a state government, or an academic institution created by federal or state law.
5. A business person in this category must be seeking temporary entry to work in direct support of professionals in agricultural sciences, astronomy, biology, chemistry, engineering, forestry, geology, geophysics, meteorology or physics.
6. A business person in this category must be seeking temporary entry to perform in a laboratory chemical, biological, hematological, immunologic, microscopic or bacteriological tests and analyses for diagnosis, treatment or prevention of disease.

Credit: “Professions Covered by NAFTA,” Embassy of the United States Ottawa

Degree Equivalencies Not Permitted

It is important to note that, where a specific degree level is required, the Administrative Appeals Office (AAO) held in Matter of __, LIN 01 176 55040 (AAO July 11, 2012), that equivalencies based on a combination of education and experience will not be accepted. In short, this means that, where a degree is required, the applicant must demonstrate that he or she actually obtained the degree.

Legacy INS guidance regarding the former U.S. Canada Free Trade Agreement did not require Canadians to complete a 4-year degree program where a Canadian university grants a degree in 3 years.³ However, while the guidance has not been revisited, the issue is not addressed directly in the regulations regarding TN status.

Special Notes

Management Consultants

A legacy Immigration and Nationality Service Memorandum stated that, with regard to the former U.S. Canada Free Trade Agreement, management consultants should generally not be full-time employees for the entirety of service. Furthermore, if management consultants are full time employees, they should not be assuming an existing position, replacing someone in an existing position, or filling a newly created permanent position.⁴

Engineers

“Software engineers” may qualify for TN status.⁵

Scientific Technician/Technologist

Although no specific degree or work experience is required, immigration adjudicators will consider certain other factors in determining whether the scientific technician/technologist applicant is eligible for TN status.

The applicant must meet the following requirements:

1. Individuals for whom the scientific technician or technologist is to provide direct support must be professionals in their own right in one of the qualifying fields.
2. The offer of employment must demonstrate that the work of the scientific technician or technologist will be interrelated with the supervisory professional (managed, coordinated, and reviewed by the supervisor). Furthermore, the applicant must provide input into the supervisor's work.
3. The applicant's theoretical knowledge should have been acquired through the successful completion of at least two years of training in a relevant educational program.

Furthermore, persons intending to do work primarily associated with another job title or work that is normally done by the construction trades are not admissible as TN nonimmigrants as scientific technicians or technologists.⁶

Offer of Employment

8 C.F.R. 214.6(d)(3)(ii) sets forth requirements regarding the offer of employment. The applicant must satisfy the Department of Homeland Security (DHS) officer (Canadian citizens only) or the consular officer (Mexican or Canadian citizens) that he or she is seeking entry into the United States to engage in business activities for U.S. employer(s) or entity(ies) at a professional level.

Documentation may be in the form of a letter from the prospective U.S. employer(s) or from the foreign employer. It must be supported by diplomas, degrees, or membership in a professional organization (depending on the specific profession). If the applicant is required to demonstrate the attainment of a certain degree, and his or her degree was not obtained from a Canadian, Mexican, or the United States college or university, the degree must be accompanied by an evaluation by a reliable educational credentials evaluation service.

The regulations require that the documentation must fully affirm that:

A. The Appendix 1603.D.1. profession of the applicant;
B. A description of the professional activities, including a brief summary of daily job duties, if appropriate, in which the applicant will engage in for the U.S. employer/entity;
C. The anticipated length of stay (not to exceed 3 years);
D. The educational qualifications or appropriate credentials which demonstrate that the Canadian or Mexican citizen has professional level status; and
E. The arrangements for remuneration for services to be rendered.

In guidance for consular officers, 9 FAM 402.17-5(C) requires that evidence attesting to the applicant's experience should be in the form of letters from former employers. If the applicant was self-employed, “business records must be submitted attesting to the self-employment.”

Multiple Employers Permitted

A TN nonimmigrant may seek entry to work for multiple employers, so long as the proposed work for each employer meets the requirements for TN status. If a Canadian or Mexican citizen is seeking entry to work for multiple employers, he or she must submit a letter from each employer along with the evidence to demonstrate that the proposed employment is in accordance with the requirements for TN status.⁷

Part-Time Employment Permitted

9 FAM 402.17-10 explains that a Canadian or Mexican citizen may seek entry into the United States to work on a part-time basis.

Self-Employment Barred

8 C.F.R. 214.6(b) states that “[TN status] does not authorize the establishment of a business or practice in the United States in which the professional will be, in substance, self-employed.” This rule is also found in 9 FAM 402.17-10.

Nonimmigrant Intent

Although there is no limit to the number of extensions of stay that a TN nonimmigrant may obtain, he or she is required to demonstrate “nonimmigrant intent” before being issued a TN visa or TN status. A TN applicant who fails to demonstrate nonimmigrant intent will be found to be inadmissible under section 214(b) of the INA.

Regulations found in 8 C.F.R. 214.6(b) and 22 C.F.R. 41.59(c) state that in order to demonstrate nonimmigrant intent, the applicant must demonstrate that he or she has a foreign residence and has no intent of abandoning it, has only the intent to remain in the United States temporarily, and does not intend to establish a permanent residence in the United States.

While having an approved Form I-140 does not, in and of itself, render an applicant unable to demonstrate nonimmigrant intent, it may be considered, among other factors, in making a determination.⁸ However, if the nonimmigrant files for an immigrant visa or adjustment of status, he or she is no longer admissible as a TN.⁹

In addition to the requirement that the applicant must not be inadmissible under section 214(b), the applicant must demonstrate that he or she is not inadmissible to the United States on other grounds.

TD Dependents

8 C.F.R. 214.6(j) allows for the spouse or unmarried child of a TN nonimmigrant to be admitted to the United States for the same period as the principal TN. 8 C.F.R. 214.6(j)(4) states that TD dependents are not eligible to accept employment in the United States unless otherwise authorized. 9 FAM 402.17-11 instructs consular officers that TD dependents may attend school full time in the United States while on TD status.

B1 Domestic Employee of TN

9 FAM 402.17-12 states that a domestic servant or employee of a TN nonimmigrant who meets the requirements for a B1 visa may be issued a B1 visa to accompany the principal TN.

Not Subject to the Home Residency Requirement

Because the two-year home residency requirement for certain J1 exchange visitors only applies to immigrant visa applicants, H visa applicants, and L visa applicants, a former J1 exchange visitor may be issued TN status even if he or she would be ineligible for H or L status on account of the home residency requirement [9 FAM 402.17-13].

Admission as a TN

8 C.F.R. 214.6(e) sets forth that, if a TN nonimmigrant is approved for admission, he or she may be admitted for the duration of the intended employment, but not for a period in excess of three years. A TN nonimmigrant will be issued a Form I-94 marked as “multiple entry.” This will allow the TN nonimmigrant to reenter the United States any number of times so long as the TN status remains valid. TD dependents will be admitted for the same duration as the principal TN.

If a Canadian citizen is admitted as a TN without a visa, he or she will be required to pay a $50 fee upon admission. Canadian and Mexican citizens who obtained a are not required to pay this fee.

Denial at a Port of Entry

If a Canadian citizen applying for TN status at the border is found to be inadmissible, he or she may request a hearing before an Immigration Judge or withdraw the application for admission. If he or she declines to withdraw his or her application for admission and is inadmissible under section 212(a)(6)(C) or (7)(A) of the INA, he or she may be subject to expedited removal proceedings [see article].

Extension of Stay

The employer of a TN nonimmigrant may file a I-129 petition to request an extension of stay on behalf of the nonimmigrant. The TN nonimmigrant must be physically present in the United States when the extension request is filed [8 C.F.R. 214.6(i)(ii)]. The TN nonimmigrant must also be maintaining lawful TN status. An extension of stay may be granted for a maximum period of three years [8 C.F.R. 214.6(i)(iii)]. There is no limit to the number of extensions that a TN nonimmigrant may obtain so long as he or she properly maintains TN status [8 C.F.R. 214.6(i)(iii)]. NOTE that this is repetitive.

Alternatively, 8 C.F.R. 214.6(i)(2) allows for the TN nonimmigrant to depart the United States and reapply at a DHS-designated port of entry prior to the expiration period of the previous period of admission as a TN nonimmigrant for a new three-year period of admission. However, the TN nonimmigrant must support the application with a letter from the employer and demonstrate that he or she continues to meet the requirements for TN status. A citizen of Mexico on TN status must present a valid passport and valid unexpired TN nonimmigrant visa as well.

Derivative TD beneficiaries are eligible for extensions of stay so long as they continue to meet the requirements for TD status.

Change or Addition of Employers

A TN nonimmigrant may change employers or add an employer(s) while on TN status. The first method by which a TN nonimmigrant may change or add employers is by having the new employer(s) file a I-129 petition with the appropriate supporting documentation. It is important to note that the TN nonimmigrant will not be authorized to commence the new employment until the request is approved [8 C.F.R. 214.6(i)(1)]. Alternatively, a citizen of Canada may seek readmission at the border with a letter from the new employer and other evidence demonstrating that the employment meets the requirements for TN status. A citizen of Mexico may present a letter and supporting documentation for a new employer to a consular office in order to seek authorization to work for the new employer [8 C.F.R. 214.6(i)(2)].

8 C.F.R 214.6(i)(3) states that a TN nonimmigrant who is transferred to another location by the same employer to perform the same services need not take any action. However, if the TN nonimmigrant is transferred to a separately incorporated subsidiary or affiliate, he or she will be required to obtain approval.

Strikes and Labor Disputes

If the Secretary of Labor certifies or informs USCIS that a strike or labor dispute involving a work stoppage at the place of a TN applicant's intended employment is in progress, this may lead to the refusal to approve TN status for the applicant even if he or she is otherwise eligible [8 C.F.R. 214.6(k)(1)].

However, if a TN nonimmigrant has already commenced employment and is participating in such a strike (regardless of whether it has been certified), he or she will not be deemed to be failing to maintain TN status on account of participation in the strike [8 C.F.R. 214.6(k)(2)]. However, the TN nonimmigrant will still be required to uphold all of the other requirements for TN status (namely not engaging in unauthorized employment) and his or her duration of stay will not be affected by the strike [8 C.F.R. 214.6(k)(3)-(4)].

Conclusion: TN Status for NAFTA Professionals

TN status is an appealing way to work in the United States for qualified Canadian and Mexican citizens. While offering similar benefits to H1B status [see article], TN status has many advantages, such as an easier application process, no numerical caps, a broader selection of permitted employment, and no limit on the number of extensions of stay. However, it is important to remember that, unlike H1B applicants, TN applicants are presumed to have immigrant intent and must demonstrate nonimmigrant intent.

An applicant for TN status and his or her employer(s) are well advised to consult with an experienced immigration attorney. An experienced immigration attorney may help the parties put together a complete application, identify the most effective way to seek a TN visa or TN status, and determine whether there are any mitigating factors in advance of the application.

_______________________

1. INA § 214(e)(3)-(5) sets forth procedures for setting numerical limitations on the number of Mexican citizens who may be admitted as TNs. However, there are no such numerical limitations at the present.
2. See: 8 C.F.R. 214.6(d)(1); 22 C.F.R. 41.59(a)(2); 9 FAM 402.17-6
3. Letter, Puleo, Asst. Comm., Adjudications, CO 1773-C (Dec. 22, 1989), reprinted in 67 No. 22 Interpreter Releases 639, 655 (June 4, 1990)
4. Memo, Puelo, Asst. Comm., Adjudications COI 1773-C (Oct. 4, 1989), reprinted in 9 AILA Monthly Mailing 253-54 (Apr., 1990)
5. Memo, Cronin, Acting Ex. Assoc. Comm., Office of Programs, HQINS 70/6.2.23, reprinted in 77 No. 42 Interpreter Releases 1550, 1556-57 (Oct. 30, 2000)
6. Memo, Williams, Ex Assoc. Comm. Field Operations, HQINS 70/6.2.2 (Nov. 7, 2002), published on AILA InfoNet at Doc. No 02121331
7. CBP, NAFTA Guide for TN and L Applicants (June 2012), published on AILA InfoNet at Doc. No. 13091643
8. Letter, LaFleur, Business and Trade Services, Benefits Branch, INS, HQ 1815-C (June 18, 1996), reprinted in 73 No. 28 Interpreter Releases 970, 979-80 (July 22, 1996).
9. Letter, Morris, Executive Director, Admissibility and Passenger Programs, CBP to Herrington (Apr. 21, 2008), published on AILA InfoNet at Doc. No. 09021280

Resources and Materials:

Kurzban, Ira J. Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C.: AILA Publications, 2014. 865-67, Print. Treatises & Primers.