TN status

TN status or TN visa is a special non-immigrant status in the United States, Canada, and Mexico that offers a unique, expedited work authorization to a citizen of these countries. It bears a similarity, in some ways, to the US H-1B visa, but also has many unique features. Within the TN set of occupations, a United States, Canadian, or Mexican citizen can work in the one of the other two countries for up to three years, but does not have the right to apply for permanent residence.^[1] The permit may be renewed indefinitely.

Description

The visa category "Professionals Under the North American Free Trade Agreement", also known as a TN (Treaty NAFTA) visa, is available only to citizens of Canada and Mexico, under the terms of the North American Free Trade Agreement (NAFTA). Beginning in 1988, individuals practicing one of the professions identified in the Canada - United States Free Trade Agreement are able to obtain TN status for legal work in the United States and Canada, creating freedom of labor movement. TN status is recognized in the North American Free Trade Agreement (NAFTA) which began in 1994.

Certain TN status categories are known to be more difficult than others. For example, 'Management Consultant' applicants will often be scrutinized closely to determine if they will really be serving as consultants, or are in practice simply 'managers'. (The latter is generally not allowed under TN status.) Similarly, 'Computer Systems Analysts' will often have their applications carefully examined to ensure that their qualifications and job duties truly rise to the level of Computer Systems Analyst, and that they are not in practice simply serving as computer programmers.

Qualifications

A person may be eligible for TN status, if:^[2]

• The prospective employee is a citizen of the United States, Canada, or Mexico;
• The profession is one cited under the NAFTA Treaty;
• The company seeking to pursue TN Status with the prospective employee meets qualifications cited under the NAFTA treaty;
• The prospective employee has been issued a formal, written full-time or part-time offer of employment in the United States, Canada or Mexico;
• The prospective employee has the qualifications to practice in the profession in question.

Initial Period of Stay

Once TN status is granted, it is good for up to three years,^[3] but only for the specific employer for which it was originally requested. Changing employers will require to start from scratch with a new application. If employment with a single employer is desired for more than three years, it may be renewed indefinitely.

Prior to October 16, 2008, the initial period of stay for a TN status holder was up to one year only.^[4]

Renewal

Renewal is accomplished either by a mail-in renewal within the United States, or by returning to the border and, in effect, presenting a new application.

However, the TN status may be renewed indefinitely in three-year increments, but it is not a permanent visa and if U.S. immigration officials suspect it is being used as a de facto green card, then they may elect to deny further renewals. The set of occupations permitted to petition for TN status is also quite a bit more limited than for the H-1B visa.^[5]

Renewal is possible, in theory, indefinitely, but the TN status is not a substitute for permanent residency (a green card), and the border official has the discretion to refuse further renewals if she feels the ability for indefinite renewal is being abused. How this happens in practice depends largely on the mood of the individual border official. Some Canadians have successfully renewed TN status for a decade or more; others have found that after 3–4 years a border official denies further renewals.

Dependents

The spouse and dependent children under the age of 21^[2] of a TN professional may apply for TD status (TD-1 for the family members of a Canadian citizen worker, or TD-2 for those of a Mexican worker). TD status can't be granted for longer than the period of time granted to the principal TN professional holder.^[2]

TD status does not allow them to work, although they are permitted to attend school.^[2] In most states, non-resident tuition rates will apply for post-secondary institutions. If the spouse requesting TD status is not a Canadian citizen, he or she will usually still qualify for TD status, but must first request a formal TD visa at a US consulate.

The US consulates report 3,000 to 4,000 TD visas issued in each US Fiscal year from 2007 to 2009; this includes visas issued both to family members of Mexican TN-2 visa holders and to non-Canadian family members of Canadian TN-1 entrants.^[6]

Canadian citizens

For Canadians, TN status does not involve a visa. Canadian professionals are admitted into the United States in TN-1 status at the border. Canadian citizens are not required to obtain a visa,^[7] but instead receive TN status with U.S. Customs and Border Protection (CBP) at their Port of Entry (most commonly it is done upon entry to the United States from Canada, but entry in TN status is permitted at any port of entry). It must be noted that the TN status will only be granted if the period of stay is temporary.^[7] There is no appeal recourse if one is refused TN status.TN Visa valid up to 3 years.

Canadian citizenship for TN status purposes may be by descent or naturalization. Those with qualifications from sources outside Canada or the U.S. must prove equivalency to the U.S. requirements.

Canadians have two alternative procedures to apply for TN status. One by going directly to their Port of Entry and the other one by passing by the United States Citizenship and Immigration Services (USCIS).

Directly to a Port of Entry

Applying for this status is a fairly streamlined procedure. The Canadian at the U.S. Port of Entry, must:^[7]

• Request TN status;
• Present a proof of a job offer^{[note 1]} from a U.S.-based employer, in the form of an employment letter detailing a temporary employment for not more than three years;
• Bring the original documentation and provide a copy of the applicant's college degree and employment records which establish qualification for the prospective job;
• Present a proof of Canadian citizenship (passport); and
• Pay a fee of US$50 (plus an additional $6 at a land or sea crossing; this is included in airline tickets when arriving by air).

The U.S. immigration officer will then adjudicate the application on the spot and grant or deny TN status. If the decision is to grant TN status, the Canadian immediately enters the U.S. and begins TN employment. If the decision is to deny, the immigration officer will often detail the shortcomings in the application; if these are relatively straightforward to correct, the Canadian will often correct the problem in a day or so and then return to the border to reapply.

Applying with the USCIS

Alternatively, a prospective TN employer can apply for a change of visa status to TN on the person’s behalf.^[2] The procedure for doing this is by submitting Form I-129 petition with a US$325^[8] fee to the appropriate (California or Vermont)^[9] USCIS Service Center.

If USCIS approves Form I-129, the prospective worker may then apply to CBP for admission to the United States as a TN nonimmigrant by providing the following documentation to a CBP Officer at certain CBP-designated U.S. ports of entry or at a designated pre-clearance/pre-flight inspection station:

• Proof of Canadian citizenship; and
• Approval Notice from USCIS for Form I-129.

In addition, when applying for admission, the applicant should have in their possession a copy of the Form I-129, and all supporting documentation that was submitted to USCIS, in order to respond to any questions about eligibility. The applicant should also be prepared to pay any applicable inspection fees at the time that he or she seeks admission. If a CBP officer finds the applicant to be eligible for admission, the person will be admitted as a TN nonimmigrant.^[2]

The advantage of this U.S.-based process is that the applicant can avoid a face-to-face meeting with an officer of U.S. Customs and Border Protection (CBP) in order to get the TN visa. Many U.S. CBP officers, particularly those located at a U.S./Canada land crossing or a major Canadian international airport, have a reputation for being unduly skeptical, if not confrontational, toward Canadian TN visa applicants.^[10]

Domestic Partner/Cohabitating Partners

If you have a TN Visa you may bring your Domestic Partner to live with you. They will get a B2 visa up to one year, but most likely only 6 months. They will not be able to work for a US Company in the US or study in the US.^[11][12]

Mexican citizens in the United States

A Mexican citizen must first obtain a U.S. TN-2 visa at an American consulate (generally in Mexico). Once the TN visa stamp is on the Mexican citizen's passport, they may enter the U.S. with TN status in a similar manner to a Canadian citizen. In fiscal years 2007 through 2009, between 4,000 and 5,000 TN visas (including TN-2 visas for Mexicans) were issued by U.S. consulates each year.^[6]

Prior to 2004, Mexicans were subject to an annual quota and to procedures similar to an H-1B visa.^[13]

Extension options

Renewal/extension of TN status can be done either by mail (which requires filing of form I-129 "Petition for a Nonimmigrant Worker" by the employer, along with proof of the TN holder's citizenship and education, and an extension letter similar to the original offer letter) or by duplication of the original process (for Mexican citizens, a trip to a US consulate; for Canadians leaving and re-entering US, document requirements are similar to those for obtaining the original TN).

TN holders (and any dependents) are required to leave the US as soon as the TN status expires or the job is terminated; there is no formal grace period as there is with an H1-B. The individual is legally not allowed to remain in the USA to look for another job (unless they have an active application for B1/B2 Visitor Visa or similar before the last day of employment). If they wish to re-enter, they must secure an offer of employment from abroad. USCIS will usually allow a non-immigrant to enter the US to attend a specific pre-arranged job interview in visitor status. (Visitor status is allowed up to a maximum of six months - entry in any other non-immigrant category including TN counts against this limit.)

Income tax requirements

Canadian TN status workers are responsible for US Medicare, State, Federal and Social Security taxes work in the US. US TN status workers in Canada are also subject to corresponding income tax liabilities and end-of-year filing of returns in Canada. In general, there will be income tax liabilities in accordance to where the employee works regardless of where legal or physical residence is maintained during employment. This is much like US citizens who live in one state but work in another who are then subject to state income and other taxes in the state in which they work. If their legal residence is still in their home country, workers may also be required to file a return in their home country. Based on income tax treaties, credit is normally available in the home country for income and other payroll taxes paid in the foreign country. Bilateral treaties exist to allow workers to regain benefits. For example, after a minimum of 1.5 years of work in the US, workers become eligible for a pro-rata Social Security benefit under what is known in the US as a Totalization agreement. After more than 10 years of work in the US, the regular Social Security benefit calculation minus the Windfall Elimination Provision will be applied. Therefore, the worker may receive 3 cheques, one each from the Canada Pension Plan, Old Age Security and US Social Security.^[14]

Comparison to H-1B visa

TN status has some similarities with the H-1B visa. TN status may be easier for some Canadians or Mexicans to obtain, as they are not subject to the annual cap for H-1B visas issued. However, because the TN status is adjudicated at the border, TN status can also be revoked at any time at the border (if a Canadian is re-entering the US), even if it is not up for renewal. Thus it is important to be sure that any application is perfectly airtight.

But the most important difference is that TN status does not include the doctrine of dual intent. Therefore, Canadians or Mexicans on TN status must be careful if they desire to ultimately pursue the green card. Either they should first switch to the H-1B visa before applying for the green card, or they must carefully time things to ensure they do not attempt to renew TN status after the green card application is formally pending (generally meaning that Form I-485 package has been filed for TN holder; those pursuing consular process can renew until just before the interview appointment at an Immigrant Visa issuing US Consulate).

Employer Requirements

Employers do not need to maintain extensive documents and records on TN workers, unlike with H-1B employees. In the case of an investigation or audit by the Immigration Service or Labor Department, the employer must show that the worker is in valid status. An employer must complete the Form I-9 for employees in TN visa status, as with all other employees.^[15]

Recognized TN professionals

The following professions qualify for the TN Visa.^[16][17] They are covered by Appendix 1603.D.1 of the North American Free Trade Agreement.^[18]

Notes

See also

• E-3 visa (an arrangement for Australians to work in the U.S.)
• United States Permanent Resident Card
• United States citizenship

References

External links

• Bureau of Consular Affairs, U.S. Department of State, Visas for Mexican and Canadian NAFTA Professional Workers
• U.S. Citizenship and Immigration Services, TN NAFTA Professionals
• U.S. Customs and Border Protection, Nonimmigrant Trade NAFTA Professional (TN)
• Bureau of Consular Affairs, U.S. Department of State, Visas for Canadian and Mexican NAFTA Professional Workers
• WikiHow, Get a TN Visa to Work in the United States
• U.S. I-94 Admission Online Number Retrieval
• Frequently Asked Questions about TN
• TN VISAS: Professionals under NAFTA