Anyone watching the US political debates or the news over the last year probably heard much discussion about NAFTA, the North American Free Trade Agreement, which when enacted into law in 1993 created special economic and trade relationships for the United States, Canada, and Mexico. But not many people realize that NATFA created a special nonimmigrant visa category for Canadians and Mexicans to come to the US to work in professional-level jobs. That nonimmigrant visa is called the TN. The “T” and “N” of TN stands for Trade NAFTA. The TN permits qualified Canadian and Mexican citizens with a job offer from a US employer to seek temporary entry into the United States to engage in professional business activities.
To qualify for the TN, a foreign national must:
- Be a citizen of Canada or Mexico;
- Be seeking a job in one of the professions listed in the TN regulations;
- Have a prearranged full-time or part-time job with a US employer who provides an offer letter detailing the terms and conditions of employment (but not self-employment); and
- Have the qualifications to practice in the profession in question.
This may seem pretty straight-forward and it certainly can be, but as this post will detail, there are some areas within the TN that can potentially be problematic.
Professions List
Not every profession is listed under the TN regulations. If a foreign national’s offered position in the US does not fall in one of the enumerated professions, a TN is unfortunately not a possible option. The NAFTA professions list is divided into four areas: general, medical/allied health, science, and teaching. USCIS publishes the full list of all the TN professions and the qualifications for each.
Procedure for Applying
Employer/sponsors can file TNs with US Citizenship & Immigration Services (USCIS) by submitting a Form I-129 and the appropriate form supplement and other required documents (similar to other common nonimmigrant visas). As of this writing, TN applications submitted at USCIS can be filed via Premium Processing—meaning for the extra $1225 filing fee, USCIS agrees to adjudicate the case in fifteen calendar days (barring any Request for Evidence which would stop the clock until the requested evidence is returned); however, conveniently, TNs can alternatively be applied for directly at either a US Embassy/Consulate (for Mexican citizens) or the US/Canadian border or other port of entry (for Canadian citizens).
In the case of Mexicans, the visa applicant can book a TN visa appointment at a US Embassy/Consulate and bring the required documents to get a TN visa laminated into their passport. The visa can be granted for a period of one year but at entry Customs and Border Protection (CBP) can admit the TN visa holder for up to three years. Of course, if the applicant needs to travel internationally after the initial visa in the passport expires, a new visa needs to be applied for at the US Embassy/Consulate.
Canadians can skip the consular appointment as they don’t need visa stamps in their passports to enter the US. Instead, Canadian applicants can bring the required documents directly to a TN office at a designated TN port of entry. An officer can then adjudicate the case while the applicant stands at the desk and waits. If granted, the applicant can be admitted to the US for a three-year period.
Educational Requirements
Most TN categories require a bachelor’s degree in a field related to the TN category. As discussed in more detail below, a few do not. For those that do, unlike with H-1B or E-3 visas where a combination of education and experience is acceptable, for TNs they must have the actual degree. No combination of education and experience will be accepted. For people applying at the US/Canadian border or US Embassy/Consulate in Mexico, officials will usually request the originals of the degree certificate as clear proof of their qualifications for the TN. Additionally, if the degree is not obtained from one of the NAFTA countries (meaning Canada, Mexico, or the US) the degree must be evaluated by a qualified evaluation service to be equivalent to a US bachelor’s degree. Even if the degree is Canadian or Mexican, it’s never a bad idea to get that evaluation done so there is no question about the equivalency.
It is a common adjudication practice both at the port of entry, Embassy/Consulate, and with USCIS for the officer to require a specific degree in the occupational field in order for the applicant to qualify for TN status. For instance, for an industrial designer, a degree in industrial design. The TN regulations, however, governing TNs really don’t provide any guidance on the degree majors appropriate for each TN occupational category. USCIS memorandums have said that the TN applicant should have a degree major in the specific field or in a closely related field. One can look to Department of Labor (DOL) publications such as the Occupational Outlook Handbook (OOH) or the Occupational Information Network (O’NET) for guidance on what the government thinks are appropriate fields for the occupation.
Special Consideration for Certain Categories
While most of the TN categories are pretty clear-cut, others have some issues up for interpretation, which can cause potential problems at adjudication.
Computer Systems Analyst: This is not a catch all IT occupational category. Computer programmers and computer scientists are not the same thing as computer systems analysts. The NAFTA Handbook does provide some additional clarification on the types of duties USCIS finds acceptable for a computer systems analyst:
The computer systems analyst category does not include programmers. A systems analyst is an information specialist who analyzes how data processing can be applied to the specific needs of users and who designs and implements computer-based processing systems. Systems analysts study the organization itself to identify its information needs and design computer systems that meet those needs. Although the systems analyst will do some programming, the TN category has not been expanded to include programmers.
Management Consultants: This category is probably one of the most contentious because many people apply for it when none of the other categories are appropriate for them—especially since experience can be used in lieu of a degree. The category is not supposed to be a catch-all for employees who don’t fit into one of the enumerated occupational categories. It’s supposed to be for people who are coming to the US to actually be a consultant. A management consultant's professional services are expected to be of a temporary, periodic, or fixed consulting nature rather than performed as full-time employment.
The NAFTA Handbook also defines the types of engagements permissible under the management consultant TN category. It advises that management consultants are usually independent contractors. Management consultants may be engaged in a direct employee relationship in only two scenarios. They may be employees of (1) consulting firms under contracts to US entities; or (2) US entities to which they are providing services to if (a) they are not assuming existing positions or filling newly created positions, and (b) are only filling a supernumerary temporary position.
The same handbook also provides some additional guidance on the types of duties acceptable for a management consultant:
Management Consultants provide services that are directed toward improving the managerial, operating, and economic performance of public and private entities by analyzing and resolving strategic and operating problems and thereby improving the entity’s goals, objectives, policies, strategies, administration, organization, and operation.
Because so many people apply for this category of the TN when they do not conform to the above criteria, TN adjudicators seem to have a red-flag reaction when they see someone applying in this category. Thus they are adjudicated with a critical eye.
Engineers: This category can be used for any type of engineers—including computer/software engineers. The TN guidance does not provide any guidance on the type of degrees or majors suitable for a particular TN occupational category although USCIS’ standard operating procedure says that the major must be in a related engineering field. To determine the degree majors suitable for engineers for purposes of a TN visa, we look again to DOL’s resources in the OOH and O’NET. TN adjudicators, however, have taken a more restrictive approach to the degree requirements for an engineer especially for software engineers. They seem to think engineers may not fill computer-related jobs under TN classification unless they have credentials as computer or software engineers from educational institutions that recognize computer software engineering as bona fide engineering specialties offering full engineering credentials, such as professional engineering licenses. Furthermore, the US positions to be filled must require this level of credentials.
When a Job Progresses Beyond the Listed Occupational Category
Another frequent issue with the TN (in most any of the occupational categories) can come once applicants reach a higher level of their career where they are managing other professionals and doing little to none of the actual work that qualifies them for the TN category. The adjudicating officer may deny the TN in this situation with the thought that the majority of duties now fall outside the duties that would have qualified the applicant for the TN. For example, sometimes graphic designers (one of the TN categories) get promoted to art directors and then creative directors along the course of their career. Once in these higher-level roles, if the applicant is no longer actually conceiving of original designs but instead directing others to perform that task, then the case may not be successful. Of course, the title alone should not be definitive of this issue. An art director who performs graphic design duties should still qualify for the TN.
Conflict with Green Card Application
TN status is not dual intent. Dual intent means that a person could hold both a temporary intent to stay in the US but also an ultimate permanent intent to remain without conflict. Both the H-1B and L-1 visas are by law designated as dual intent. The TN is not. Therefore, TN applicants must show an intent to return to their home country after their temporary stay on the TN. The regulations say that the filing of an I-140 immigrant petition alone is not a reason to deny a TN application; however, the filing of an Adjustment of Status (i.e., a Green Card) application would likely be seen as a conflict with the TN.
Under the new 90-day rule, for the same reasons, the TN status holder must be careful about changing or adjusting status within ninety days of entry to the US.
Dependents
Spouses and children (under age twenty-one) of TNs may be granted TD dependent status. TDs are not authorized to work, but can remain in the US with their TN family members.
If a foreign national’s job offer in the US fits squarely into one of the designated categories and the person’s qualifications also match the TN list, then a TN is one of the fastest and easiest nonimmigrant visas to obtain; however, when any of the facts stray too far from the most straight-forward of cases, the TN can be more difficult. What makes it even trickier is that when presenting an application at the US Embassy/Consulate or at a port of entry, the applicant is put on the spot. They must be able to articulate their qualifications for the TN when asked by the officer. Therefore, a proper application package and preparation from an immigration attorney can be a valued resource for any applicant.