TN Basic Use and Requirements

The TN status/visa is for foreign workers who qualify for listed professions included in the U.S. – Mexico – Canada Agreement. As the agreement only relates to three countries only Canadian and Mexican passport holders qualify for TN consideration.

In short, a TN is only available for listed professional positions contained in the Treaty [insert link to TN list, and although typically a qualifying degree is noted for the vast majority of categories, there are several positions that do not require a degree but have other stipulated criteria to be qualified. The TN permits a foreign national to work only for the company that filed the petition, for a period of up to 3 years (if Canadian), or a period of up to 1 or 4 years (if Mexican). There is no specific visa maximum, meaning TNs can potentially be renewed multiple times provided the individual is not perceived to have, or demonstrated, immigrant intent.

Eligibility Criteria

The job must align with the expectations the government has for the job; e.g. an Accountant TN should be performing typical accounting functions and not perform the work of a Financial Analyst;

The individual must hold a bachelor’s degree in a field relevant to the TN profession (some exceptions apply);

The employee must be documented as having the appropriate educational credentials and experience (if required), but experience can only be used in lieu of education in limited circumstances.

Advantages

Allows U.S. companies to hire foreign nationals whether or not they have a parent, subsidiaries or affiliates abroad.

This is the quickest and least expensive work authorization available. Canadians can apply at the border and Mexicans can apply directly at a Consulate without the need for separate USCIS approval.

An individual can remain on a TN status for many years without ever becoming a permanent resident, for those individuals who simply want U.S. career experience.
Dependent spouses are not eligible for a dependent work authorization.

Special Notes

The TN is employer specific, and the wage offered should be at a professional level. If a license is required for the individual to perform the profession the individual will need the license to apply for TN status. In other cases, some licensed professions do not require a license to perform aspects of the profession.

The H-1B allows employers to argue a wide variety of positions qualify provided there is a relevant degree requirement; the TN is limited to the listed professional positions in the Treaty.

Applications for pre-approval can also be filed with USCIS where Premium Processing is available. This allows individuals to attend the border or consular appointment with an approval already issued.

STEPS OF THE CASE

Step 1 – Initial Preparation

Once the candidate accepts the job offer, HR provides the job description, salary, start date, employee contact information, and any other available documents to our office. We then contact the employee and request they fill out our questionnaire and assemble the remaining required documents listed in our checklist. The Employee or HR sends us the Employee’s remaining supporting documentation.

Step 2 – The Visa Petition Process

After receipt of the necessary supporting documents, the applicable forms and supporting letters are drafted, the following information is provided in a package to bring to the border or consulate (or submitted to the USCIS):

Resume and copy of employee’s passport and prior USCIS documents;

Copies of degrees, diplomas and school records;

Academic equivalency evaluations of foreign degrees (those degrees not earned in a treaty country), and English translation if needed;

Brochures, promotional material or articles about the company;

Company annual report or financial statements;

Required USCIS forms (Form I-129 and Treaty Supplement with Form G-28, if filing with USCIS); and

Company letter supporting the visa petition.

Step 3 – Application and Approval (Border, Consulate, or USCIS)

If applying at the border, the employee makes plans to enter at an available port of entry (this should be discussed with counsel prior to choosing); if applying at the consulate the employee will complete and submit a DS-160 and pay a visa fee to secure the appointment, or; if applying with the USCIS the application is filed, approved, and then either used for entry at the border (if Canadian) or at the consular visa interview (if Mexican).

When the USCIS Service Center approves the petition, they issue an Approval Notice (Form I-797), which is received by the employer’s agent or attorney and transmitted to the employer or employee, as instructed by the employer. The employer will also receive a courtesy copy of the Approval Notice directly from USCIS.

If the petition for an extension of stay or new petition has been approved, an employee still in the country will receive his/her Form I-797 Approval Notice and the next time the employee leaves the country, s/he should go to the U.S. consulate to get the visa issued (see above) or simply show the Approval Notice to CBP (if Canadian). The employee will be issued a new Form I-94 (showing TN status) upon re-entering the U.S. (see Step 4).

Step 4 – Entry into the U.S.

If Canadian and applying at the border, see above. For Mexican TN holders, when the employee arrives at their port of entry (the airport or U.S. border crossing), a Customs and Border Protection (CBP) officer will examine the individual’s passport and visa and USCIS Approval Notice (if applicable), and then issue their Form I-94 and allow entry. An electronic I-94 will be available to access online at https://i94.cbp.dhs.gov/I94/#/home within 24 hours.

Employees are always reminded to review their I-94 document to ensure it lists the proper status and date of expiration (status expiration should match the period of request on the initial TN application (if applied at the border), the visa (if applied at the consulate) or I-797 Approval Notice unless the individual’s passport expires beforehand – in which case the I-94 may be limited by the passport expiry).

 

** This outline/memo is provided for informational and discussion purposes only. It does not act as a substitute for direct legal contact on an individual situation. **