The North American Free Trade Agreement (NAFTA) became law on January 1, 1994. NAFTA broadened the trade benefits previously enjoyed by the United States and Canada in the US-Canada Free Trade Agreement (FTA) in effect since January 1, 1989 and extended those benefits to Mexico. NAFTA provided several new business immigration benefits for companies in the US, Canada and Mexico.
The NAFTA TN visa program allows Canadian and Mexican professionals with US job offers to work in the United States provided that the US work activity is a profession designated at Annex 1602.D.1 of NAFTA. The intending worker should present a packet containing supporting documentation to the NAFTA Officer at the port of entry. A TN visa application may require several hours for review depending on its complexity.
Most NAFTA Officers established unique procedures for submitting TN visa applications. TN applicants entering the United States by air may be subject to delays that will interfere with travel arrangements. For this reason it is wise to contact the NAFTA Officer at the intended port of entry before the worker arrives for processing. The TN visa is valid for up to two years and may be renewed.
TN visas are available to certain Canadian and Mexican professionals for work in the United States. Canadian professionals enjoy easy processing and only a short wait for issuance of the visa from the port of entry. And there is no annual cap on Canadian TN visas. Mexican TN visas, had been unfairly limited for the first ten years of the NAFTA treaty making them more like H-1B petitions, but those restrictions were lifted in 2004. Mexican TN visas were also limited to 5,500 per year for the first ten years of the NAFTA regime.
While versatile and relatively easy to obtain, TN visas are subject to restrictions. The most important of these is that the TN visa is valid only for employment at the employer or company printed on the I-94 issued at the port of entry. USCIS prints the name of the employer or company on the I-94 to discourage fraud and other employment violations. To work for a different employer or company or to add an employer or company, the TN visa holder must either apply for another TN visa, or apply to change the previously issued TN. To apply for new TN, the applicant would simply follow the steps used to obtain the first TN, but with the information from the new employer or company substituted for that of the old. TN holders may apply to amend the TN to change or add employers using USCIS Form I-129. 8 CFR Section 214(i)(2)(i).
The second important restriction on TN visas are the types of jobs eligible for TN classification. Approved jobs are listed in NAFTA, Schedule II of Annex 1603, and this list is reprinted in 8 CFR Section 214.6(2). Only persons qualified under Schedule II approved professions may be eligible for TN visas. Most of the professions listed in Schedule II require a bachelor's degree or a foreign equivalent. Three-year Canadian bachelor's programs as well as the Mexican licenciatura degree satisfy BA/BS requirements under NAFTA. But TN candidates may not satisfy those Schedule II professions requiring a bachelor's degree with equivalent experience. When Schedule II refers to 'equivalent' this means an equivalent Canadian or Mexican degree.
NAFTA allows self-employed Canadian professionals to work on contracts in the United States. Self-employed TN candidates must be qualified under a Schedule II profession and must have prearranged the US work activity. At the consular interview the TN candidate should submit proof of a substantial, prearranged business activity for a US company. While the TN candidate may have a substantial ownership interest in the Canadian company, he or she should not have an ownership interest in the US company for which the work is proposed.
An employer seeking TN status for an employee should provide a letter printed on letterhead and signed by an authorized manager describing (1) the company, (2) the job title, (3) a description of the job's duties, (4) a brief summary of the applicant's proposed daily work activities, or itinerary, as appropriate, and (5) the salary or hourly wage the employer intends to pay. Employers should also include a copy of the signed offer letter. The employee should submit certified copies of her degree, certificate, diploma or other authorized alternative qualifications. If the worker's education occurred outside of Canada, Mexico or the US, the employee should provide an education equivalency analysis.
The employee should also bring proof of Canadian citizenship and evidence to show her intent to return to Canada. An applicant can show proof of intent to return to Canada and to remain only temporarily in the US by documenting significant ties to Canada. The proof may include: letters from family, friends and associates within Canada, (2) records showing property ownership in Canada, (3) Canadian bank account statements, or (4) proof of Canadian investments.
The spouse and unmarried minor children of the TN visa applicant may be granted TD visas to enter the United States. TD visas allow the spouse and unmarried minor children to attend school in the United States, but do not authorize work. TD applicants should provide evidence of family relationship (a marriage certificate for a spouse, or birth certificate for a child), and evidence of nationality. If the spouse or unmarried minor children are following to join the TN worker, they should submit a copy of the TN worker's I-94 to the NAFTA Officer at the port of entry. The TD visa is valid for the duration of the primary TN workers' valid status.