TRADE NAFTA VISAS FOR CANADIANS AND MEXICANS
INTRODUCTION
Under the United States-Canada Free Trade Agreement, which was expanded upon in 1994 by the North American Free Trade Agreement (NAFTA), a professional nonimmigrant category was created for Canadian and Mexican professionals whose occupations are listed in the annex to these treaties. (A listing of TN professions may be found at: http://travel.state.gov/tn_visas.html.) This nonimmigrant status is known as “Trade NAFTA” or “TN” status.
Obtaining TN status may be preferable to obtaining an H-1B temporary work visa for a number of reasons. First, advanced approval from the Department of Labor and U.S. Citizenship and Immigration Service (USCIS) is not required. Consequently, the Canadian TN professional can enter the United States within days rather than after weeks or even months of initial processing (Mexican nationals must apply for a visa at the U.S. Consulate, so the process is longer).
Similarly, the prevailing wage and record keeping requirements, which govern H-1B cases do not apply to TN professionals. Also, the six-year limit on H-1B status likewise does not apply to TN professionals. On the other hand, a TN professional must be able to show that he or she has a residence abroad to which he or she intends to return and that he or she is not an intending immigrant, while those requirements do not attach to H-1B visa holders.
Thus, special care must be taken when a TN professional applies for permanent resident status because it is conceivable that such an application could cause problems for his or her TN status.
PREPARING A TN APPLICATION
Whenever an employer contemplates offering employment to a TN professional, we should be faxed a copy of the person’s resume and a description of the job being offered so we may determine whether or not the applicant can qualify for TN status.
Once we have been advised that an offer has been formally extended and accepted, we will contact the applicant to obtain directly from him or her the required supporting documentation regarding education, licensure, and, when necessary, experience.
We will also draft a letter from the employer in support of TN status. In the case of a Mexican professional, a consular visa application is also required. We will then send the entire package directly to the applicant. We also will speak with the TN applicant before he or she applies for admission to the U.S.
ADMISSION REQUIREMENTS AND PROCEDURES
A Canadian may apply for admission to the United States in TN status at a major land point of entry, a United States international airport, or at a United States pre-clearance/pre-flight inspection at a Canadian international airport. No visa or specific form is required. (In the case of Mexican TN applicants, a visa must first be issued by the U.S. Consulate before the TN applicant can enter the U.S.) The Canadian must simply show proof of Canadian citizenship and qualification in his or her profession. The documentation to be presented includes the following:
- A letter from the employer introducing the company, its need for the Canadian’s temporary professional services, the nature of the services he or she will render, and the compensation he or she will receive. This letter should indicate the anticipated period of temporary employment. We draft the required letter.
- Evidence that the Canadian has the necessary education or licenses and/or experience. This documentation may take the form of copies of diplomas, licenses, evidence of membership in professional organizations, and, letters verifying experience in certain cases. Please note that it may be necessary to evaluate university degrees from countries other than Canada if the Canadian lacks licenses or evidence of membership in professional organizations or other documentation of his or her qualifications.
- Evidence of Canadian citizenship. Please note that a Canadian passport is not required unless the Canadian applies for TN status at an international airport in the United States when returning from travel outside of the Western hemisphere.
Applications for admission in TN status are presented to the Customs and Border Protection (CBP) officials either at land points of entry, CBP facilities located inside Canadian international airports, or at U.S. international airports. Applicants should anticipate that two or more hours will be required to process their application for TN status.
The amount of time required for processing varies according to apparent factors such as the day of the week, the time of day, and where the application is made. We will advise the employer of potential employees regarding when and where they should apply after being informed of their itinerary.
TN professionals may be admitted initially in TN status for up to three years. He or she is given a Form I-94 with the classification symbol TN, upon payment of the required fee. The I-94 is marked “multiple entry.” Therefore, this document is used like a visa to reenter the United States for up to three years. TN status may be extended beyond the three years.
The spouse and unmarried minor children of a TN professional may accompany or follow-to-join as dependents in “Treaty Dependent” (TD) status. TD applicants who are Canadian or who are residents of Canada sharing a common nationality with Canadians enjoy a visa waiver and may enter in TD status without a nonimmigrant visa.
Dependents of those in TN status who are not nationals of Canada must obtain a TD nonimmigrant visa as do Mexican TN professionals and their dependents. Persons admitted in TD status are not authorized to work.
If you or a potential employee needs a TN visa, please call Gordon Law Group PC at (415) 284-1601.