The North American Free Trade Agreement (NAFTA) integrated key sectors of the United States, Canadian, and Mexican economies. Central to that integration was creating a special visa category that allowed qualified Mexican and Canadian citizens to seek temporary admission into the United States to engage in business activities.
To qualify for a TN visa a foreign national must meet five criteria:
(1) A citizen of Canada or Mexico, which is commonly demonstrated by a birth certificate or passport;
(2) Employed in a profession that qualifies under the regulations, the eligible professions are listed in Appendix 1603.D.1 of NAFTA;
(3) The position in the United States must require a NAFTA professional;
(4) Prearranged full-time or part-time job with a U.S. employer and
(5) The foreign national must have the qualifications to practice in the profession in question.
Generally, Canadian nationals are not required to obtain a visa prior to entering the United States, however, Mexican nationals are required to obtain a visa prior to entering the United States. Consequently, Canadian and Mexican nationals have different TN NAFTA visa requirements.
Canadian Nationals
Canadian nationals do not need to apply for a TN visa prior to seeking admission into the United States and may apply for entry under the TN visa at an authorized port of entry, commonly an airport, because Canadian nationals do not need a visa for termporary entry.
To obtain a TN visa a Canadian national need to present the US Customs and Border Protection (CBP) Officer with proof of citizenship, a letter from a prospective employer, and employment credentials.
Proof of citizenship is most commonly demonstrated with a birth certificate or a passport.
A letter from a prospective employer must outline the profession the foreign national will be working, the purpose of the employment, the length of stay, and the educational requirements. For example, an engineer could present a letter from an employer that states the foreign national will be working as an engineer, designing electric motors for automobiles, and will be working for a maximum of three years at a time, subject to further extensions.
Employment credentials are demonstrated with proof of requisite educational or professional background. If a professional license is required for the occupation in question, then the license must be presented. For example, a lawyer would need to present proof of a law degree and the right to practice law in a particular state the foreign national will be working.
Alternatively, an employer may apply for a TN visa on behalf of a Canadian citizen by submitting the documents outlined above and form I-129 to the USCIS.
Mexican Nationals
Mexican citizens are not permitted to enter the United States without first obtaining a visa. Therefore, Mexican citizens are first required to apply for a TN-2 visa at the US consulate in Mexico before seeking admission into the United States.
After a TN-2 visa is obtained a Mexican citizen can apply for admission into the United States through the same process as a Canadian citizen.
Common Reasons for Ineligibility
There are two common reasons that foreign nationals would be ineligible for a TN visa.
First, the applicant must be a citizen of Canada or Mexico. Permanent residents of Canada or Mexico are not eligible for a TN visa.
Second, the applicant must be employed in an eligible career and be performing the work typical of that career. Eligible careers are listed in Appendix 1603.D.1 of the North American Free Trade Agreement and include scientists, teachers, doctors, accountants, engineers, lawyers, pharmacists, scientists, and teachers.
The USCIS and the CBP look to the Department of Labor’s Standard Occupational Classification to determine what tasks are particular professionally typically performs. For example, in a recent memo, the USCIS discussed how an economist typically works in either micro or macroeconomics and does not engage in financial analysis or financial advising. An economist applying for a financial analysis position would be ineligible for a TN visa.
Therefore, before accepting a position in the United States a foreign national should ensure that the occupation is listed in Appendix 1603.D.1 and that the USCIS or CBP will find the job duties that will be performed are typical to standards set by the Department of Labor.
Common Reason for Inadmissibility
The TN visa is a nonpermanent visa and does not grant permanent entry into the United States. Unlike other visa categories like an H-1B visa, the TN visa does not allow dual intent, which means the TN visa holder cannot intend to become a permanent resident of the United States. Consequently, if the USCIS or the CBP suspects duel intent, then the foreign national will be denied admission.
If a foreign national wish to become a permanent resident, then the foreign national would first need to apply to switch their visa category to an H-1B visa or not renew their TN visa while their permanent residency application is pending.
Visa Length and Renewal
TN NAFTA visas are granted for specific employers and for an initial period of up to three years. If a foreign national changes employer, the foreign national must reapply for a TN visa. After the initial three-year period, a TN visa holder must reapply either by mail in the United States or by returning to the border and reapplying at a US consulate.
A visa may be renewed in three-year increments indefinitely. However, the TN visa is not a permanent visa and if the USCIS suspects a foreign national is using the TN visa as a de facto green card, then the USCIS may revoke the TN visa at any time.
If the TN visa expires or the foreign national is terminated then the foreign national is expected to leave the United States. The TN visa has no grace period.
Automatic Visa Revalidation
Automatic visa revalidation allows foreign nationals to visit Canada, Mexico, or adjacent lands for less than 30 days and return to the United States under the same visa category even if the original visa has expired as long as certain criteria are met.
1. Difference Between a Visa and an I-94 Date
At the time the Department of State (DOS) grants a visa the DOS assigns a visa expiration date, which is the last date that a foreign national may enter an authorized port under the visa. At the time of entry, a foreign national is provided an I-94 stamp, which indicates the last day that a foreign national is legally authorized to stay in the United States. These two dates are critical for entry, reentry, and visa renewal, but these dates may not be the same.
For example, a foreign national may enter the United States on the last day of their TN visa and be approved to stay in the United States for two years. Consequently, the foreign national will have an expired TN visa but a valid I-94 authorization to stay in the United States. In this case, the foreign national may lawfully remain in the United States.
Subject to certain exceptions, Canadians generally are visa exempt and so their entries and reentries into the U.S. are primarily governed by their I-94 authorization period.
2. Entering the United States Under Automatic Visa Revalidation
Automatic visa revalidation allows foreign nationals to visit Canada, Mexico, or adjacent lands and return to the United States on an expired visa as long as the follow criteria are met: (1) the foreign national only visited Mexico, Canada, or an adjacent land for 30 days or less; (2) the foreign national possesses a valid I-94; (3) the expired visa has not been cancelled or revoked; (4) the foreign national does not apply for a new visa or apply to renew their expired visa outside the United States; and (5) a valid passport.
When attempting to reenter the United States under the automatic visa revalidation rule, a foreign national must present their expired visa, valid form I-94 form, and a valid passport to the Customs and Border Protection Officer.
Consequently, if a Mexican TN visa or a Canadian TN status expires while saying in the United States, the foreign national may still be eligible to return home for a brief stay of up to 30 days and return to the United States under the expired visa or status.
Conclusion
The TN visa allows for Mexican and Canadian nationals to enter the United States and work as a professional. The TN visa can be renewed indefinitely, but foreign nationals must make sure that the job duties they will be performing are common to the industry and that they do not have duel intent.
If one qualifies, the TN visa is an excellent way for Canadian and Mexican professionals to live and work in the United States for an extended period of time.