The TN Visa arose out of the North American Free Trade Agreement, or NAFTA. TN stands for “Trade Nafta.” Under the NAFTA, citizens of Canada and Mexico had, through varying degrees, the use of a new non-immigrant visa category, called the “TN” Visa to enter and work in the United States. I say varying degrees because the application of the TN Visa is different for citizens of Canada and different for citizens of Mexico. This article will touch upon the grant of TN Visas to Canadian citizens, not to Mexican citizens. Under the current law, the grant of TN Visas to Mexican citizens closely parallels the H-1b non- immigrant process, which is covered elsewhere on this website.
Canadian citizens can, and indeed do apply for the TN Visa. The TN Visa holds substantial advantages in terms of processing time and level of complexity over its nearest relative, the Non-Immigrant H-1b Work Visa.
To qualify for the TN Visa, an applicant must:
- Be a citizen of Canada;
- Have a professional degree or its equivalent;
- Be a professional eligible to receive the TN Visa; and
- Have a job offer of professional employment from a United States employer.
Obtaining the TN Visa can be as easy as proceeding to a United States port of entry along the Canadian border with the job offer letter, proof of Canadian citizenship and proof of the TN applicant’s educational and experience credentials. If all documents are in order, the TN Visa would be approved and the Canadian citizen can enter the United States. The TN Visa is granted for up to one year, and can be renewed indefinitely for additional one year periods. Renewals can be made either within the United States, through the INS’ regional service centers. Alternatively, renewal can be made when a TN Visa holder re-enters the United States.
While in theory the process is supposed to work smoothly, quickly and effortlessly, in practice it does not. Very often, INS border posts are suspicious of TN Visa applicants. They believe that the TN Visa may be used to circumvent the protections for U.S. workers. Whether correct or incorrect, this attitude of suspicion on the part of the INS often results in rejection of the TN Visa application. Very often the same set of documents and the same set of facts, when presented at two different border posts can result in a rejection at one and an approval at another. This illustrates the subjectivity with which the immigration service treats applications for TN Visas.
Therefore, in order to avoid undue anxiety and delay in the TN application process, it is highly recommended that the application be prepared correctly. A properly prepared application would include at bare minimum, the following:
- Proof of Canadian citizenship.
- Proof of the applicant’s degree certificates, education, and training.
- Proof of the applicant’s experience in the field, if any
- Employer’s job offer letter and/or letter in support of the TN application.
Often the employer believes that merely a short job offer letter will suffice as proof of the proposed employment in the United States. This is not the case. The regulations for the TN Visa clearly set forth the components of the job offer. Therefore, a supporting letter must at minimum include the following:
- -An explanation of how the position classifies for one of the listed occupations that allow for a TN Visa.
- -Recitation of the employee’s education, training and experience which would qualify him as a professional under the provisions of NAFTA.
- -Documentation of the employee’s licenses or other professional credentials which would qualify him for the position (example: Professional Engineer, attorney, CPA, etc.)
- -Documentation of the wage, and if required, the working conditions for the employment.
The current listing of professional occupations under NAFTA can be found under the provisions of NAFTA, at Appendix 1603.D.1. Let’s examine one of those classifications – “Computer Systems Analyst” – to see how NAFTA would apply in obtaining a TN Visa:
Under the provisions of NAFTA, a Computer Systems Analyst may obtain a TN Visa. To obtain the visa, the Canadian citizen must have a Baccalaureate Degree OR Post Secondary Diploma or Post Secondary Certificate combined with three years experience. Therefore, it is not necessary to have a Bachelor’s Degree to qualify for a TN Visa as a Computer Systems Analyst. However, a combination of the Post Secondary iploma/Certificate together with three years experience will suffice.
The next step is for the applicant to obtain a detailed job offer letter from the employer which would identify the particular provision of NAFTA which provides for issuance of a TN Visa to the Computer Systems Analyst. The letter should also clearly set forth the duties of the Computer Systems Analyst. Generic statements such as “responsible for all systems analysis tasks as delegated” will generally not suffice. Rather, the offer letter should be made more specific, for example “the computer systems analyst will work on the implementation of a computerized messaging system allowing for touch tone key pad input.”
The letter should go on to clearly state the experience and the degree or educational credentials of the applicant. If the applicant has any additional training in his field or has acquired any additional licensing in his field (example: in the above case, the applicant could have acquired certification from a networking company or a hardware/software manufacturer), then such certification should also be listed. Finally, the duration of the proposed employment should be listed together with the salary to be paid to the TN employee. Under no circumstances should the duration of the employment exceed one year, as this would disqualify the TN applicant.
In contrasting the TN with the H-1, several advantages become evident. One advantage of the TN Visa is that there is no cap on the number of TN Visas that may be issued each year. Last fiscal year, H-1b Visas ran out in May. Therefore, no H-1b’s were issued for new employment from the middle of May 1998 through September 30, 1998. This obviously caused problems to U.S. employers.
Another advantage of the TN Visa is that it can be approved relatively painlessly at a port of entry. With the H-1b Visa, the application has to be submitted to an INS regional service center, and can take up to six weeks for processing.
A third advantage of the TN Visa is that no prevailing wage attestation or information needs to be provided. TN workers do not need to conform to the prevailing wage guidelines of the U.S. Department of Labor. On the other hand, H-1b workers must be paid the minimum of the prevailing wage or the actual wage, whichever is lower. This leads to additional documentation and processing for an H-1b worker as opposed to a TN worker.
As stated above, a TN Visa is issued for only one year but it can be renewed indefinitely in additional one year increments, provided the INS is convinced of the bonafide nature of the TN employment. In contrast, the H-1b Visa is limited to a maximum total period of six years.
The TN visa has drawbacks too. One is that a TN Visa holder cannot apply for an immigrant visa (green card) for long term residency in the U.S.A. Another disadvantage is the short (1 year) duration of the TN status.
The key to success in a TN Visa application, as with all immigration procedures, is to be prepared. Remember that by preparing a poor quality TN application, you are not only hurting your own case, but you are also developing a bias against the TN Visa. The poorly drafted or unprepared TN Visa applicant will certainly hurt himself or herself, and in addition will cause the enhanced scrutiny of future TN Visa applicants.
Finally, it must be remembered that just like the H-1 Visa, the TN Visa applicant is granted the visa on condition that he or she is providing services to a specified U.S. employer. If that employer should change, the TN Visa is no longer valid and a new TN Visa will have to be obtained to provide services to a new employer.
The Department of Foreign Affairs and International Trade has published a helpful guide, titled “Temporary Entry to the United States: A Guide for Canadian Business Persons”. A link to this guide can be found on this website in the section on Links to Other Resources.
Given the explosion in all sectors of the U.S. job market and the scarcity of qualified U.S. workers to fill professional positions, the TN Visa is increasingly becoming a favored route to obtaining the services of qualified Canadian professionals for U.S. employers.
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Copy right Farhad Sethna 1998 All Rights Reserved