To get TN status, professionals must be citizens of either Canada or Mexico. They must also be professionals on the TN NAFTA professionals list and must apply for a TN-1 or TN-2 visa and meet all requirements for entry into the United States.
American employers who wish to hire Mexican and Canadian citizens must first extend a job offer. The employer must sponsor qualified professionals for this visa and the visa holder must have the required license, education, and/or work experience for the offered position. The employer must have a need for a NAFTA professional to sponsor a Mexican or Canadian citizen for the role.
Dependents such as spouses and children under the age of 21 can accompany the principal TN visa holder to the United States. Family members of Canadian citizens who are Canadian citizens themselves do not need a visa, but do need to meet requirements for admission into the United States. On the other hand, Mexican citizens do need to apply for a TD non-immigrant visa to accompany the principal TN visa holder into the U.S. If spouses or children or TN visa holders are not themselves citizens of either Canada or Mexico, a visa may be required.
Dependents of TN visa holders are permitted to study in the United States, but are not permitted to work. As such, the principal TN holder must be able to show ability to financially support his/her dependents in the U.S. Also, when entering the United States, the dependents must show the principal TN holder’s Form I-94, which helps prove the TN visa holder’s current maintenance of status. Dependents must also provide documents that verifies their relationship with the principal TN visa holder. It is important to note that a dependent’s stay in the U.S. is tied to that of the TN holder.
If a company needs a NAFTA professional for a position, it is useful to carefully consider the position title. Though not required, it is helpful if a job title exactly matches the title on the list of NAFTA-approved professions. Employers should consider the NAFTA list of professions when crafting a job description, role, and job ad for an open position. This helps the company attract the right foriegn national candidates and helps provide documentation which can help in the TN visa application process.
The process of securing a visa is different for companies hiring Canadian citizens and Mexican citizens. If an employer wishes to hire a Canadian NAFTA worker, the employer must first make a job offer to a qualified candidate. The job offer must be for a position covered on the NAFTA list of TN approved professions. This process entails crafting a job role and performing recruitment outside the U.S. An employer will also need to screen and vet candidates to find qualified ones who meet the education requirements of the position.
In some cases, an employer may choose to apply for TN status for their employee before they leave Canada. In that case, the employer needs to file Form I-129 — Petition for Non-immigrant Worker — with the U.S. Citizenship and Immigration Services (USCIS) and await a reply. Once the petition has been approved, the Canadian worker can seek entry into the United States at a designated port of entry or pre-flight inspection station with the Form I-129 Approval Notice from USCIS and proof of Canadian citizenship. The applicant should also have their completed Form I-129 and all the supporting documents used in the approved application ready to present.
Once the visa application is approved, professionals will be able to seek entry into the United States at a designated port of entry or pre-flight inspection station. With both Mexican and Canadian applicants, there is no need for employers to seek any labor certification process from USCIS or the U.S. Department of Labor, which is an advantage with this visa program.
However, a key restriction is that there needs to be a qualified full-time or part-time position awaiting the applicant when they apply for TN status. The visa program is not available for self-employed individuals, freelancers, or contract workers.
The TN visa is not a dual intent visa, which means that it cannot be used as a path to a green card. One issue that can arise is that the TN visa holder is expected to return to their home country after their authorized stay. If an employer has a permanent job position open, the company may need to hire additional workers after a TN visa expires, or apply for a TN extension or renewal.
The TN visa can be renewed almost indefinitely, so it is possible for a company to hire a NAFTA professional for three years at a time and continue to renew the visa. To do this, the employee must continue to be able to show no immigration intent.
For many healthcare workers seeking to work in the United States under a TN visa, there is also an additional restriction. Many healthcare workers, including registered nurses, physical therapists, licensed practical nurses, physician assistants, medical laboratory technologists, and many others need to apply for the VisaScreen® Visa Credentials Assessment Service to obtain an ICHP Certificate. Employers need to ensure the NAFTA professionals they hire have complied with these requirements.
VisaScreen is required for medical professionals educated outside the United States and is needed for the listed occupations when first applying for a TN visa and when applying for renewal. TN visa holders in medical professions are required to keep their ICHP Certificate valid and up to date while working in the U.S.
While the TN visa program is designed to allow American companies to easily hire NAFTA professionals, the process is not always seamless. Professionals who live and work in the United States for a year or a few years become valuable assets to their employers and companies may wish to retain the talent they have hired. Since the TN visa is a non-immigrant visa, however, applications for a green card can sometimes be challenged.
If an employer wishes to transition their NAFTA hire to a permanent position, it is possible. However, TN visa holders must wait 90 days or more after their most recent entry into the U.S. before seeking a path to a green card to avoid misrepresentation of intent issues regarding their reasons for working in the United States.
Another challenge that can arise when seeking entry to the United States as a NAFTA professional occurs if there is an issue at the border, or if an applicant is found to be inadmissible. This can be a difficult situation because a U.S. employer may be expecting them to start at a specific date.
Employers can help by drafting carefully-worded employment letters or contracts which provide plenty of details about the position, including the length of time the work is expected to take, the applicant’s qualifications, compliance with state laws and DHS (Department of Homeland Security) rules, details about the position’s pay arrangements, and the duties of the role to be performed by the applicant.
This letter will be presented at a consular interview by Mexican candidates and at the border by Canadian NAFTA professionals. Drafting this document carefully is important to reduce the risk of delays with the TN visa. Employers hoping to hire a NAFTA professional may wish to consult with an immigration attorney for help drafting this important document.
It is also important for employers to stay in contact with their NAFTA candidates, and to stay apprised of the process. TN visas do involve the visa holder to do much of the work, but employers can help by keeping lines of communication open and by supplying detailed instructions to Canadian and Mexican candidates, to ensure future employees are fully compliant. Maintaining communication can also help alert employers if there is an issue, allowing them to contact an attorney if they need help.
It can be useful to speak with an immigration attorney if you have any concerns about hiring candidates using the TN visa program. If you are an employer having trouble securing a visa for a NAFTA professional, speaking with an experienced immigration attorney can help you explore options for finding the qualified talent you need.
The TN visa can authorize a professional to stay in the U.S. for up to three years. However, immigration authorities may issue a visa for a shorter period. The length of time a TN status holder is allowed to stay in the United States will depend on a few factors, such as how long their professional business in the United States is expected to take.
Employers who are writing a letter outlining the terms of employment may want to consider the length of stay carefully. The details included in this letter, including how long a project or work is expected to take, will inform how long a TN visa is issued.
Extensions are available for this visa in some cases. To apply for an extension, the U.S. employer of the visa holder will need to file Form I-129. Another option is that the applicant can leave the U.S. before their visa expires and apply for an extension at a preflight inspection station or designated port of entry.
Since the process of applying for a TN visa can be complex, with different requirements for citizens of Mexico and Canada, it will be useful to have an attorney walk you through the process and address any challenges your company may be having.
Farmer Law regularly works with organizations looking to hire qualified foreign nationals, including citizens of Canada and Mexico. We may be able to help you in a case strategy which meets the requirement of a TN visa application. We can also help you determine the best ways to sponsor employees to fill the open positions at your company and we can assist with the application process, freeing up your time so you can focus on your business success.