The North American Free Trade Agreement (NAFTA) came into effect on Jan. 1, 1996. It was later replaced by the United States–Mexico–Canada Agreement (USMCA) in 2020, though the terms are largely the same. This arrangement between the United States, Canada, and Mexico allows for freer travel of products across borders and also allows some professionals from Mexico and Canada to enter the U.S. for business purposes. TN visas are included in this agreement and are one of many ways companies can hire Canadian and Mexican professionals to work in the United States.
For U.S. employers, the TN visa category is advantageous because it expands the potential pool of candidates for many positions. Employers also benefit from the fact that the TN visa program places minimal burden on the employer. In fact, the key role of the employer is to hire a qualified NAFTA candidate, and to supply a job offer, contract, or letter of employment. The TN visa applicant does much of the rest. Once TN status is achieved, the employer simply needs to ensure continued compliance. There are few additional requirements for the employer of a TN visa applicant discussed below.
What is the TN visa category?
The TN (Trade National) visa program allows qualified TN NAFTA professionals who are Canadian or Mexican citizens to enter the United States for business purposes. Those who hold TN status can conduct business in the U.S. or work in the United States on a part-time or full-time basis for an authorized period.
Furthermore, unlike other employment-based visa types, the TN visa does not have a prevailing wage requirement. Rephrased, with the TN visa, employers do not need to go through the prevailing wage process, which mandates how much employers must pay their workers in a particular geographic area. Instead, in a letter of employment or employment contract, an employer outlines the details of a position, including the wage, the employer is willing to pay.
The TN visa is not an immigrant visa, and as such, the visa program may be a good fit for American organizations seeking to fill positions on a temporary basis for up to a few years. It offers employers a chance to find qualified professionals that aren’t readily available in the US.
Who qualifies, and under what conditions?
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.
What occupations are on the allowed list?
The list of TN occupations defines the professionals who can be hired by American employers through the TN visa program. In general, occupations fall into four categories: professionals, scientists, teachers, and healthcare workers. Most of these positions require at least a bachelor’s degree, and include but are not limited to:
- Seminary instructors
- Computer systems analysts
- Disaster relief insurance claims adjusters
- Medical laboratory technologists
- Industrial designers
- Interior designers
- Registered nurses
- Research assistants
There are 63 approved occupations on the list in total. The full, current list is available on the Association of International Educators website. The list of NAFTA professionals approved for TN visas also includes the educational and licensing requirements — if any — for each position.
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.
What’s the process for securing a TN visa like?
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.
Once selected for a position, the Canadian candidate can then apply for the TN-1 visa at a designated preclearance inspection station or a designated port of entry without applying for a visa ahead of time. Designated ports of entry have been earmarked for faster processing to handle the large volume of TN visa applicants. To secure a visa, Canadian citizens must be able to provide specific documentation to U.S. Customs and Border Patrol authorities, including:
- Credentials required for the position they will be undertaking in the United States, including any needed degrees or license
- A job offer letter from the sponsoring employer, outlining the purpose of the role, the intended length of stay, the applicant’s qualifications for the position, and the job duties or work to be performed
- Payment of the fee applicable to the application
- Proof of Canadian citizenship
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.
Filing Form I-129 is required if a Canadian citizen resides in a third country and has non-Canadian children or a non-Canadian spouse and seeks a TN visa. In this case, applying for a TN visa before seeking entry is mandatory to secure derivative TD visas for the spouse and children of the NAFTA professional.
In some cases, a Canadian citizen may already be in the United States when hired by an employer. An employer may wish to hire a Canadian freelancer already living in the U.S., for example, or may have hired a Canadian living in the U.S. with an American spouse. If a Canadian citizen is already in the United States when they apply for a TN visa, the employer must apply for a TN visa on behalf of their worker. Employers can do this by filing Form I-129 with the USCIS.
If an organization wishes to hire Mexican citizens, the process is different but it also begins with a job offer from an American employer for a qualifying position on the NAFTA TN list. At that point, Mexican professionals must themselves apply for a TN visa before leaving their home country, because they cannot enter the United States without a visa. The process for a TN-2 visa for Mexican citizens requires a few steps before entering the U.S.
- File Form DS-160 — the Online Non-immigrant Visa Application — with the U.S. Department of State, following all instructions online and uploading a photo if required
- Print the application confirmation page, available after DS-160 is complete
- Schedule an interview at a U.S. embassy or consulate
- Pay the visa application fee
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.
Once a NAFTA professional has been hired, the employer should request that the employee complete an I-9 work authorization as soon as possible. It is also important for the employer to verify that the TN employee’s I-94 reflects the correct date and that the employee’s job duties and salary are in alignment with the TN position for which they were hired.
Are there any caps or restrictions to be aware of?
There are no caps on how many TN visas can be issued, so anyone who qualifiesand has their application approved can seek entry into the United States. This means employers in the U.S. hoping to hire NAFTA professionals don’t need to wait for visas to become available for their workers and they are not competing with other organizations for visas.
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.
Are there any potential sticking points or roadblocks with the process?
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.
The best way to avoid this situation is to confirm whether there are any factors that can render an applicant inadmissible. These can include medical grounds for inadmissibility, past convictions, affiliations with some organizations, past overstays in the United States, and past immigration violations. If an employer or applicant has any concerns about a candidate’s admissibility, it is best to speak with an attorney before the expected date of admission.
Another way to reduce the risk of a NAFTA professional being denied at a port of entry is to ensure that there is ample evidence of eligibility. Applicants, even those already approved with the USCIS, should bring the documentation they need to prove their eligibility.
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.
How long can employees stay in the U.S. with a TN visa?
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.
How can Farmer Law help?
There are many employment-based visa programs in the United States, so if your company is seeking to hire foreign nationals, you may wish to speak to an immigration attorney about your long-term plans to determine which visa program may be right for you. If you want to hire a worker permanently, the H-1B visa has a dual intent element, meaning it provides a path to permanent residency so your employee can remain in the United States. Speaking with an attorney at Farmer Law PC can help you determine whether a TN visa, H-1B visa, or another program can help your organization find the talent you need.
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.
Our experienced legal team are poised to help you understand the current regulations and requirements. No matter what your situation is, if you are interested in using an employment-based visa program to bring qualified candidates into the United States to grow your business, contact Farmer Law today for a consultation with an immigration attorney.