What is the TN visa?

The TN visa classification is for citizens of Mexico or Canada who seek to enter the U.S. on a temporary basis “to engage in business activities at a professional level.” This classification is based on the NAFTA treaty.

The classification is similar to the H-1B category in that it is generally for professionals who wish to enter the U.S. to work for a temporary period of time. The phrase “business activities at a professional level” is defined in the regulations as activities that require at least a baccalaureate degree or “appropriate credentials demonstrating status as a professional” in a profession listed in Appendix 1603.D.1 of NAFTA. The professions fall into four major categories:

• General professions
• Medical/allied professionals
• Scientists
• Teachers

The regulations outline the specific degree or professional credentials requirements for each profession listed.

Who qualifies for the TN classification?

1. The TN applicant must be a citizen of Canada or Mexico. Note: the country of birth does not matter in this case – just current nationality.
2. The TN applicant must have a job offer in the U.S. – self-employment in the TN classification is generally prohibited. In some circumstances a management consultant can be self-employed but the application must be presented carefully and clearly.
3. The position must be one of the positions listed in the Appendix.
4. The applicant must be able to document that he or she meets the educational/professional requirements for that position as outlined in the Appendix.
   1. Some TN positions do not require that the applicant have a degree in a specific field of study. For example, the TN management consultant position requires either a baccalaureate or licenciatura degree or equivalent professional experience as established by statement or professional credential attesting to five years experience as a management consultant, or in a field of specialty related to the consulting agreement.

What is the process for obtaining TN status?

It is possible to apply for the TN directly at the port of entry (for Canadians, who are visa exempt), or at the U.S. consulate (for Mexicans, who do require a visa). If a TN applicant is applying directly at the port of entry or at the U.S. consulate, it is not required to have a petition approved by USCIS first (unlike the H-1B process). The TN applicant would present a package of documents directly to the CBP officer (if Canadian) or to the consular officer at the scheduled visa interview (if Mexican), and the officer will make a decision on the application.

If the foreign national is in the US, it is possible to file for a change of status to TN, or to file an extension of status for a person who already holds TN status. The employer would file a petition with USCIS to request the change of status or extension of status.

Duration of the TN status: The TN status can be valid for up to 3 years at a time. Keep in mind the following:

• The duration of the TN can be for up to 3 years, but it is not guaranteed to be granted for a full 3 years. The duration may be shorter if the duration of the proposed activity is shorter (for example, if your employment contract is for less than 3 years).
• The duration of the visa is different from the duration of the I-94. The visa is the document that you present to enter the US. The I-94 is the document that you receive when you enter the US, and that specifies how long you are permitted to remain in the US. If your I-94 is valid for 3 years, but your visa is valid for one year, you can remain in the U.S. until the date specified on the I-94 card (3 years), even though your visa will expire after one year. If you have questions on this, be sure to consult with a qualified immigration lawyer.

Can I hold TN status and also apply for a green card (permanent residence)?

Classic lawyer answer: it depends!

The TN is not dual intent. Dual intent refers to certain nonimmigrant (temporary) visa classifications that allow a person to hold that temporary visa classification and simultaneously apply for permanent residence. The H-1B classification is dual intent.

Generally speaking, if a TN applicant is the beneficiary of an I-140 petition (or other immigrant visa petition, whether pending or approved), that is a factor that the officer will consider in assessing immigrant intent. That is, a person is not automatically ineligible for admission in the TN category just they are the beneficiary of an I-140 petition, but it’s also not guaranteed that they would be admitted. Once a person files the I-485 application for adjustment of status or applies for an immigrant visa, they are no longer eligible for admission in TN status.

How is the TN different from the H-1B classification?

The TN is similar to the H-1B classification, but there are a few key distinctions, including:

• There is no cap on the number of TNs available every year, as there is for the H-1B.
• There is no hard and fast limit on the number of years a person can hold TN status, as there is with the H-1B.
• The TN application process does not necessarily require a UCCIS petition, and does not require an LCA (labor condition application).
• The TN classification is not dual intent.
• There is a specific list of professional positions eligible for the TN (and there is no such list for the H-1B classification), and some positions do not specifically require a bachelor’s degree.