by: Shriom Arza
When most people think of the North American Free Trade Agreement (NAFTA), they usually only think about trade relations between Canada, Mexico and the United States of America. However, NAFTA has established much more than just trade and economic relations, such as TN Visas. According to the United States Citizenship and Immigration Services (USCIS), “[t]he TN nonimmigrant classification permits qualified Canadian and Mexican citizens to seek temporary entry into the United States to engage in business activities at a professional level.” The type of occupations that qualify as business activities under TN Visa status include, but are not limited to, accountants, engineers, lawyers, pharmacists, scientists, and teachers. However, you must remember that before applying for a TN Visa you must have a prearranged full-time or part-time job with a U.S. employer, and you must possess the qualifications to engage in the profession in question. Qualifications often take the form of a college degree, official certification and/or licensure. One’s spouse and unmarried minor children may apply for TD visas to accompany them to the United States or join them later, but the TN Visa holder must be able to prove their ability to financially support their family while in the United States.
TN Visas were modeled after H1-B Visas, which means that they may only be used when the employer is based in the US and the person applying is going to participate in a qualifying occupation. TN Visas do have several advantages over H1-B Visas because of NAFTA. TN visas are granted for 3 years, but can continue to be renewed indefinitely so long as the individual still meets all of the qualifications. Unlike H1-Bs, Canadian citizens can apply for TN Visas at the border between the US and Canada. When applying in this fashion, the visas are often granted in as little as an hour or two. Additionally, TN Visa applications require significantly less documentation than H1-B Visa applications. TN Visa applications are also less complicated than H1-B Visa applications, which means that applicants can likely expect lower fees when paying an immigration attorney to assist them with this process. One of the drawbacks with TN Visas compared to H1-B Visas, is that TN Visas are not a path to achieving one’s green card (officially known as Legal Permanent Resident Status), whereas H1-B status is. That being said, although TN Visas do require less paperwork, it is not recommended that anyone attempt to do this without the assistance of a licensed and experienced immigration attorney.
When applying for a TN Visa, one must bring the following items, according to USCIS:
- Passport valid for travel to the United States – Your passport must be valid for at least six months beyond your period of stay in the United States (unless exempt by country-specific agreements). Each individual who needs a visa must submit a separate application, including any family members listed in your passport.
- Nonimmigrant Visa Application, Form DS-160 confirmation page
- Application fee payment receipt, if you are required to pay before your interview
- Passport-style Photo – You will upload your photo while completing the online Form DS-160. If the photo upload fails, you must bring one printed photo in the format explained in the Photograph Requirements. (A photo is not required if you are applying in Mexico.)
- A contract or letter of employment for an employer in the United States – To show that you have a job offer, provide a contract or employment letter from your employer in the United States confirming your upcoming employment in one of the professional occupations listed in Appendix 1306.d.1 of NAFTA Chapter 16. The letter should also include:
- Your purpose of entry;
- A detailed description of your anticipated business activities or job responsibilities;
- Your anticipated length of stay in the United States;
- Your educational qualifications or appropriate credentials demonstrating professional status;
- Evidence of your compliance with Department of Homeland Security (DHS) regulations and/or state laws; and
- Arrangements for your pay.
- Documentation proving that you meet the minimum education and/or work experience requirements set forth in Appendix 1603.d.1 of NAFTA chapter 16 – Evidence of education would include degrees, diplomas, certificates, professional licenses, and /or membership in professional organizations. To demonstrate your experience, present letters from former employers. If you were self-employed, provide your business records.
There are differences between Mexican and Canadian citizens when it comes to applying for TN Visas. To be able to live and work in the United States with TN status, Mexican citizens must apply for their TN Visa while outside the United States and request admission to enter the US under TN status. Canadian citizens can choose this route, but they also have an additional option available to them. A visa is not required for a Canadian citizen entering as a NAFTA Professional, and they can apply for TN Status at a U.S. port-of-entry. Applying for TN Status at a port-of-entry can take as little as a couple of hours, whereas applying for a TN Visa abroad can take many weeks, if not several months. A Canadian who resides in a country other than Canada with a non-Canadian spouse and/or child(ren), and plans to enter the United States as a NAFTA professional with family member(s), will need a TN visa in order for the family member(s) to be eligible to apply for derivative TD nonimmigrant visa(s). There are several steps to apply for a TN Visa.
First, one must complete the online visa application and then print the application form confirmation page to bring to the interview. After that, one must schedule an interview. Individuals under 13 or over 80 usually are not required to attend an interview, but if they are over 14 and under 79, an interview will be required. One should schedule an appointment for their visa interview in the U.S. Embassy or Consulate in the country where they live. They should then pay the non-refundable visa application fee, if one is required to pay it before the interview. They should also prepare the documents listed above and attend their interview. Make sure to bring originals certified copies of official documents, as well as photocopies to give the interviewing officer. If one is denied at or after their interview, they may still reapply. All one has to do is submit a new application and a new visa application fee, addressing or fixing any deficiencies that caused the first application to be denied. The United States-Mexico-Canada Agreement (also known as the USMCA) is effective as of July 1, 2020. The USMCA replaced NAFTA, which expired June 30, 2020. Fortunately, this new agreement did not affect TN Visas. The USMCA has the same list of occupations eligible for TN Visas that was in NAFTA. However, since the future of H-1B, L-1, and J-1 visas is currently uncertain, businesses should consider the TN Visas for their Canadian and Mexican citizen employees.
If you are a Mexican or Canadian citizen who believes that they may qualify for a TN Visa, or are an US employer that would like to hire a Mexican or Canadian citizen, please feel free to contact the Law Office of Gian-Franco Melendez, LLC to speak with an experienced immigration attorney about your options.
