The "TN", or "Trade NAFTA", nonimmigrant visa category was created by the North American Free-Trade Agreement ("NAFTA") in 1994. NAFTA provides for the temporary entry of Canadian and Mexican citizens to the United States, for United States and Mexican citizens to Canada, and for United States and Canadian citizens into Mexico. NAFTA covers only citizens, not landed immigrants or permanent residents, of Canada, Mexico, and the United States.
The TN has some significant benefits over the H1B visa. For example:
- The admission procedure for a TN status is faster because the INS does not have to approve a petition prior to entry into the United States.
- TN status is only available in one-year increments; however, TN visas do not have a six-year limit on stays in the United States like under the H1B status.
- There is no annual cap on the number of Canadian TN professionals that may enter the United States.
The prevailing wage rules of the H1B program are not applicable to TN status holders.
However, as will be seen, not all of these benefits are available to Mexican nationals under the law.
The TN visa process is an objective process, unlike the H1B visa process, which is a subjective process. Under the TN visa process, so long as a U.S., Canadian or Mexican national has the requisite credentials, then (s)he may obtain a TN visa. For example, a "Systems Analyst" must have one of the following: (1) a baccalaureate degree, (2) a licenciatura degree, or (3) post secondary diploma/certificate and three years of experience. If they do not have these credentials, then they will not be issued a TN visa. There is very little, if any, discretion available to the immigration officer reviewing the paperwork. This oftentimes leads to problems when a traveler thinks they have the proper credentials, but in reality do not.
WARNING: Many Canadian and Mexican citizens fail to receive a TN visa because the letter of support from the sponsoring employer is not properly drafted. While it appears to be an easy process to obtain a TN visa, this is only true if the Canadian or Mexican citizen has the proper credentials, and those credentials are properly presented. That is why it is still important to hire an immigration attorney before attempting to obtain a TN visa.
TN Visas for Canadian Nationals
A Canadian national may obtain a TN visa from US Immigration and Naturalization Service ("INS") Free Trade Officers at any Class A port of entry, as well as at a number of international airports. At the port of entry or at the departing airport, the Canadian professional must present the following:
- Proof of citizenship such as a birth certificate or a passport.
- Evidence in the form of a job letter that the intended United States activity is one listed under NAFTA.
- Evidence that the Canadian citizen has the necessary educational qualifications, such as a certified copy of a university degree or an affidavit of work experience.
- Documentation of the arrangement for remuneration for the United States activity such as a letter from the company specifying the Canadian citizen's salary.
- A statement that the purpose of the entry is temporary.
- A $50.00 USD filing fee (plus $6.00 USD for an I-94 card if entering at a land port of entry).
Canadian professionals already in the United States on a B1, H1B or L1A visa can apply for a TN visa by filing an application for a change of nonimmigrant status (INS Form I-129) with the Immigration and Naturalization Service's Nebraska Service Center.
TN Visas for Mexican Nationals
As previously discussed, a TN visa has many significant benefits over an H1B visa. However, two important TN benefits are not available to Mexican nationals. Unlike a Canadian national, a Mexican national must obtain approval from the INS prior to entering the United States. Also, Mexican nationals are not exempt from the prevailing wage requirements as are Canadian nationals. This means that the sponsoring company must certify to the US Department of Labor ("DOL") that it will pay the prevailing wage for the position in question for the geographical region where the Mexican national will work. These two limitations make a TN visa for a Mexican national equivalent to an H1B visa in terms of difficulty and processing times. For this reason, most sponsoring employers apply for an H1B visa instead of a TN visa for Mexican nationals.
The TN visa process for Mexican nationals consists of two steps. First, a "Labor Condition Application" (or "LCA") must be filed with the DOL. Then a TN non-immigrant visa petition is filed with the INS. The LCA certifies to the DOL that the sponsoring employer is paying the Mexican national wages that are at least the actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific job site where the Mexican national will be assigned, or the prevailing wage level for the occupational classification in the area of employment, whichever is greater, based on the best information available at the time the application is filed. In addition, the sponsoring employer is making the following attestations:
- That employing the Mexican national will not adversely affect the working conditions of US workers similarly employed;
- That there is not a strike or lockout in the course of a labor dispute in the occupational classification at the place of employment; and
- That the employer, at the time of filing the application, has provided notice of the filing to the bargaining representative, if any, of the persons employed by the employer in the occupational classification and the area for which the Mexican nationals are sought; or, if there is no such bargaining representative, has posted notice of the filing in conspicuous locations at the place of employment.
As part of the LCA process, employers are required to document that they have complied with the attestations listed on the LCA. Although none of this documentation needs to be submitted to the DOL, some of it must be available for public inspection. The rest must be maintained for review in the event of a DOL investigation.
Mexican professionals already in the United States on some other nonimmigrant status may apply for a TN visa by filing an application for a change of nonimmigrant status (INS Form I-129) with the Immigration and Naturalization Service's Nebraska Service Center under the same process outlined above.