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What is NAFTA and What is a TN Visa?

NAFTA

NAFTA is the North American Free Trade Agreement, which creates special economic and trade relationships between the United States, Canada and Mexico. In seeking to facilitate the freer flow of goods and services between NAFTA countries, the treaty opened new and relatively easier avenues for certain citizens of Canada and Mexico to secure nonimmigrant visas. The nonimmigrant NAFTA Professional (TN) Visa allows citizens of Canada and Mexico to work in the United States as NAFTA professionals without jumping through the myriad legal hoops that other foreign nationals face when seeking an H-1B Visa. In addition, the TN Visa holder’s spouses and unmarried children under the age of 18 may accompany her under TD status. This avenue for admission to the United States, however, is not available to either Canadian and Mexican green card holders. If you would like to see how our firm has represented clients and their dependents in cases of TN and TD Status under NAFTA, view our TN Status Success Stories.

Qualifications for a TN Visa – Generally, and for Mexican and Canadian Citizens Specifically

In order for Mexican or Canadian professionals to work in the United States as TN Professionals, they must satisfy the following five conditions:

1.) The beneficiary (i.e. the person that will become the TN Visa holder) must be a citizen of Canada or Mexico. Again, the applicant cannot be a Permanent Resident of the United States;

2.) The beneficiary’s profession is on the NAFTA list, which includes a wider array of jobs than H-1B Visas. Positions range from architect to accountant, engineer to economist, veterinarian to graphic designer, and social worker to librarian.

3.) The position the beneficiary will assume in the U.S. requires a NAFTA professional, even if that position is part-time. Satisfaction of this condition will be discussed further below.

4.) The Mexican or Canadian beneficiary is to work in a prearranged full-time or part-time job, for a U.S. employer—essentially, that the beneficiary has an employer that requests its presence in the United States. Self-employment is not permitted, which includes a foreign national who applies to work in the United States for a company for which the foreign national is the majority or sole shareholder or owner. However, this general prohibition on self-employment does not apply in the case of a Canadian citizen, who seeks to enter the United States to consult a United States company, and who owns any interest—even a controlling interest—in a Canadian company, and that company has been contracted to perform consultancy services for a United States business;

5.) Canadian or Mexican Professional citizen has the qualifications of the profession. Licensure is a post-entry, not a pre-entry requirement, although it may be submitted beforehand and the beneficiary must ensure it will attain the licensure her position requires. Experience cannot serve as a substitute for educational qualifications when the profession calls for an education qualification, and some jobs require both educational qualifications and experience in the profession. Educational qualifications, which will be discussed further below, generally consist of a baccalaureate degree. However, certain positions require additional and/or alternative educational qualifications.

Proof of satisfaction of these conditions, save that of citizenship, will often come in the Letter of Employment, which prospective employers must include with their I-129 Petition on behalf of the beneficiary. The Letter of Employment should contain the following information:

1.) An in-depth description of the activities of the beneficiary’s position to prove she will engage in these activities in a professional capacity;

2.) The purpose of the foreign national’s entry, which will presumably be to perform the activities of her position;

3.) The foreign national’s anticipated length of stay. As will be discussed below, her stay will normally be three years, but it may be extended;

4.) The foreign national’s educational qualifications, which may take the form of degrees and diplomas. Note that if those degrees or diplomas come from institutions outside the Canada, Mexico, or the United States, they must be accompanied by a credible evaluation of the foreign degree’s legitimacy. Also, as stated above, experience cannot be a substitute for education when a profession calls for a specific degree. However, some professions treat degrees and certain thresholds for experience interchangeably. Lastly, make sure to check which degrees (and experience) a certain profession calls for, since different professions call for different degrees. For example, a vocational counselor must only show proof of receiving a BA, while a computer system analyst must show receipt of a BA or a post-secondary diploma, as well as three or more years of experience.

5.) The beneficiary has complied with any state law that may apply; and

6.) That the petitioning business and the beneficiary have some agreement concerning how the business will compensate the beneficiary for her services.

Although the above-mentioned conditions must equally be met by Canadian and Mexican Citizens, there are additional and distinct requirements for citizens of both countries.

Requirements for Canadian Citizen Professionals

Generally speaking, Canadian citizens do not need a visa as a NAFTA Professional, even though a visa can be issued to a qualified TN visa applicant upon request. However, if the Canadian resided in another country with a non-Canadian spouse and children, that Canadian citizen would need a visa to enable the spouse and children to be able to apply for a visa to accompany or join the NAFTA Professional. As previously stated, the visa available to spouses and children under the age of 18 of TN Visa holders is a TD Visa. To apply for a TN Visa, please see the requirements under the section Mexican Citizens – Applying for a TN Visa – Required Documentation.

A Canadian citizen without a TN visa can apply at a U.S. port of entry if she provides the following:

1.) Request for admission under TN status to Department of Homeland Security, Customs and Border Protection, U.S. immigration officer;

2.) Letter of Employment – Evidence of professional employment.

3.) Proof of professional qualifications, such as transcripts of grades, licenses, certificates, degrees, and/or records of previous employment;

4.) Proof of ability to meet applicable license requirements;

5.) Proof of Canadian citizenship—Canadian citizens may present a passport, as visas are not required, or they may provide secondary evidence, such as a birth certificate. However, Canadian citizens traveling to the United States from outside the Western Hemisphere are required to present a valid passport at the port-of-entry;

6.) The filing fee of $50 USD.

Many of these requirements will look familiar, as they are generally included in the Letter of Employment. However, since the Canadian citizen in this situation is applying for a TN Visa for herself—i.e. an employer is not doing it for her—she must provide the Customs and Boarder Officer the documentation that would normally accompany the Form I-129 Petition and the Letter of Employment.

Requirements for Mexican Citizens

As of January 1, 2004 the procedures were simplified for Mexicans by removing the requirement for petition approval and for filing of a labor condition application. Moreover, Mexicans are no longer subject to numerical limitation for these professionals. However, Mexican citizens still must have a visa to request admission to the United States.

MEXICAN CITIZENS APPLYING FOR A TN VISA – REQUIRED DOCUMENTATION

Mexican citizens may apply at consular sections around the world for a NAFTA professional (TN) visa. As part of the visa application process, an interview at the embassy consular section is required for most visa applicants. Interviews are generally by appointment only. As part of the visa interview, an ink-free, digital fingerprint scan can generally be expected. Depending on the embassy consular sections, waiting times can range from a few weeks or less to considerably longer.

Each Mexican applicant for a TN visa must submit these forms and documentation, and submit fees as explained below:

1.) An application, Nonimmigrant Visa Application, Form DS-156, completed and signed. The DS-156 must be the March 2006 date, electronic “e-form application.”

2.) A passport valid for travel to the United States and with a validity date at least six months beyond the applicant’s intended period of stay in the United States (unless country-specific agreements (download pdf) provide exemptions).

3.) One (1) 2×2 photograph. See the required photo format explained in Nonimmigrant Photograph Requirements. A photograph is not required if you are applying in Mexico.

4.) Letter of Employment in the United States (see above)

5.) Additionally, as nonimmigrants, applicants must demonstrate that:

A.) That their stay is a temporary period that has a reasonable and finite; and

B.) that does not equate to permanent residence.

ADDITIONAL DOCUMENTATION OR REQUIRED QUALIFICATIONS

Additionally, beneficiary’s must demonstrate that they are properly classifiable as NAFTA Professional for TN visa, under U.S. law by:

Education Requirement- The applicant’s employer must submit proof that the applicant meets the minimum education requirements or has the alternative credentials set forth in NAFTA agreement, chapter 16 appendix 1603.d.1. Evidence of professional qualifications may be in the form of degrees, certificates, diplomas, professional licenses, or membership in a professional organization. Degrees, diplomas, or certificates received from an educational institution outside the United States, Canada, or Mexico must be accompanied by an evaluation by a reliable credentials evaluation service specializing in evaluating foreign documentation.

Work Experience Requirement – Document proving to the applicant’s experience should be in the form of letters from former employers. If the applicant was self-employed, business records should be submitted proving that self-employment.

Benefits of a TN Visa

Although the TN Visa process is not without its difficulties, it still remains much easier than its H-1B counterpart. And even more, once a TN beneficiary has secured its TN Visa, her stay is subject to many fewer restrictions over the course of its duration, which may last up to three years. For example, a TN Visa holder may extend her stay for additional three-year periods without any limit, so long as the TN Visa holder remains eligible for the visa. Furthermore, a TN Visa holder may change employers during her stay. To do so, her employer must file a Form I-129 Petition for Non-immigrant Worker with the appropriate US Citizenship and Immigration Services’ (USCIS) Service Center Additionally. a TN Visa holder is permitted to leave and re-enter the United States during her three-year period so long as she is in possession of her I-94 and without any special documentation. And even if she does not have her I-94, she can come and go without any problems if she can present evidence such as proof of prior lawful admission or a copy of the valid, unexpired TN Visa. Still, it is important to remember that no matter how many times a TN Visa holder renews her visa, her renewals alone will not render her a Permanent Resident. To reiterate, this avenue for admission to the United States is not available to both Canadian and Mexican Permanent Residents of the United States.

One drawback is that unlike H-1B applicants, TN beneficiaries must prove nonimmigrant intent, which is the intent to not abandon her home country. As listed above, the Letter of Employment must contain a statement pertaining to the foreign national’s nonimmigrant intent. Furthermore, unlike for F-1 Visa applicants, the government may not apply the dual intent doctrine—that the nonimmigrant presently intends to fulfill the conditions of her nonimmigrant visa and return to her home country upon completion, but would be open to remaining in the United States should a legal avenue for Permanent Residence present itself—to beneficiaries of TN Visas. This inapplicability, however, does not change the fact that there is no limit on how many times a TN Visa holder may extend her TN Visa. Lastly, thanks to the TN Visa holder’s nonimmigrant intent, she or any of her dependents will not be eligible to receive in-state tuition.

Further information on the NAFTA, including the “NAFTA Handbook,” go to the Department of Homeland Security USCIS Website, select North American Trade Agreement.