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TN Canada: NAFTA Visas for Canadian Professional Workers
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The TN Canada is a nonimmigrant visa category under the North America Free Trade Agreement (NAFTA) available to citizens of Canada. The TN Canada visa category was created after the United States entered into the North American Free Trade Agreement (NAFTA) in 1994 with Canada and Mexico. The primary aim of the immigration provisions of NAFTA are to facilitate the temporary transfer of professionals between the member states, the United States, Canada and Mexico, and to support the entry of Canadian and Mexican Citizens to the United States to engage in professional activities on a temporary basis.

Qualifications for a TN Visa for a professional from Canada:

To qualify for a TN Visa the applicant must demonstrate:
  • You are a citizen of Canada;
  • Your profession is on the NAFTA list;
  • The position in the U.S. requires a NAFTA professional;
  • You have a bona fide job offer from a U.S. Employer;
  • You will be working in a prearranged full-time or part-time job, for a U.S. employer (self employment is not permitted under NAFTA) and;
  • You posses the required qualification of the profession in which you will be working in the U.S.

Ineligibility to Apply for TN Canada Work Visa:

The TN Canada is a NAFTA professional work visa category available only to citizens of Canada. Permanent residents or landed immigrants of Canada or Mexico are not eligible Ė NAFTA made provisions only for citizens of the member countries.

Applying for TN Canada Work Visa at a U.S. Port-of-Entry:

Because Canadians are visa exempt they may apply for TN status directly at any U.S. Class ďAĒ port of entry, at a U.S. airport handling international traffic, or at a U.S. pre-flight/pre-clearance station in Canada.

Required Documentation for TN Canada Work Visa:

To qualify for admission as TN Canada, citizens of Canada, at the U.S. Port of Entry, shall:

  1. Request a TN Status: Request admission under TN status to Department of Homeland Security, Customs and Border Protection, U.S. Immigration Officer;

  2. Present Letter of Employment in the United States: You must provide an original job offer letter, written in English and addressed to the immigration service on company stationery.

    Your prospective employer in the U.S. must provide you a Letter of Employment. The letter must indicate that the position in question in the US requires the employment of a person in a professional capacity, consistent with the requirements listed by NAFTA under TN visa requirements.

    The letter should include sufficient information and evidence of the professional employment to satisfy the inspecting officer of your plans to be employed in prearranged business activities for a US employer or entity at a professional level. Part-time employment is permitted as well as having multiple employers (however you must be approved for employment with each employer). Self-employment is not permitted. The employment letter or contract should provide a detailed description of the business activities of the U.S. employer, and should include the following:

    • Activities in which you will be engaged;
    • The specific purpose of entry;
    • The anticipated length of stay;
    • Your educational qualifications or appropriate credentials demonstrating their professional status;
    • Evidence of compliance with DHS regulations, and/or state laws; and

  3. Evidence of Professional Licensure and/or Work Experience: Bring the original documentation and provide a copy of your college degree and employment records which establish qualification for the prospective job. Proof of licensure to practice a given profession in the United States may be offered along with a job offer letter, or other documentation in support of a TN visa application.

  4. Proof of Canadian Citizenship: Canadian citizens are now required to present a passport for entry into the U.S. so they may use the passport as proof of Canadian citizenship. They may also provide secondary evidence, such as a birth certificate.


  5. Fee: Payment of the required filing fees at the port of entry.

Change of Status to TN Canada Work Visa if you are Already Inside the U.S.:

If you qualify for TN status as a Canadian and you are legally present in the U.S. in another non-immigrant status that allows for a change of status, then your employer may apply for change of status to TN by filing a Form I-129 with the Vermont Service Center. All documents required to obtain TN status, that we discussed above must be submitted along with the Form I-129. TN status will be granted on Form I-797 Notice of Action with a new I-94 form at the bottom.

Duration of Stay on TN Canada Work Visa:

The maximum period of admission into the U.S. in TN status is three years. The USCIS may grant extensions of stay of up to three years at a time. There is no limit on the number of years a TN Canada visa holder can stay in the United States. However, as noted above there is no dual intent with the TN Canada work visa and you must prove that you intend to return to Canada at the end of your authorized stay; the TN Canada status is not for permanent residence.

Extension of Stay on TN Canada Work Visa:

You may seek an extension of stay, which may be granted up to three years at a time:

  • If you are in the U.S., your employer may file Form I-129, Petition for Non-immigrant Worker, with the USCIS Vermont Service Center; or 

You may apply at any Class A port of entry using the same application and documentation procedures above as required for the initial entry.

Spouses and Children of TN Canada Visa Holders: May Spouse Work?

The spouses and unmarried children under the age of 21 who are accompanying or are intending to join principal TN Canada visa holder in the U.S. may receive derivative TD status. Applicants must demonstrate a bona fide spousal or parent-child relationship to the principal TN Canada visa holder. The spouse and children do not have to be citizens of Canada. Additionally, the TD spouse and children cannot accept employment in the U.S.; however they are permitted to study in the U.S.

Your spouse or children intending to join you must show a copy of your valid I-94, thereby providing proof that you as the principal TN Canada visa holder are maintaining your TN status.

TN Canada Work Visa Does Not Support Dual Intent:

The TN Canada work visa does not recognize dual intent. At the time of application you must demonstrate that your stay in the U.S. will be temporary, reasonable and finite.

TN Canada Work Visa in Contrast to H-1B:

The TN Canada work visa has some similarities with the H-1B visa, but it also has some significant differences. The most important difference between H1B Visa and TN Canada work visa is that TN Canada work visa does not support the doctrine of dual intent. Therefore, while you are in TN status you must be careful if you desire to pursue a green card (you should first switch to an H-1B visa before applying for the green card, or you must carefully time things so you do not have to attempt to renew your TN status after the green card application is formally pending).

Advantages of TN Canada Work Visa Over H-1B are:
  • Although the TN status is granted for only three years at a time, the number of renewals granted to TN Canada visa holders is currently unlimited, whereas H-1B status has a definite time cap.
  • No specific forms are required for the TN application made at a U.S. port of entry or preflight inspection, unlike the H-1B.
  • TN status can be directly obtained in person at a U.S. port of entry or preflight inspection instead of having to be submitted to the USCIS for pre-approval as do most other visa applications.
  • TN status is available to some people who would not qualify for H-1B status.
One of the major advantages of the TN visa is that not all professional positions require that the applicant have a bachelorís degree. Several TN professional positions require only a two or three year degree plus three years experience (Computer Systems Analysts, Graphic Designer Hotel Manager, Industrial Designer, Interior Designer, Technical Publications Writer, and Medical Laboratory Technologist), while others only require that the applicant have the appropriate state or provincial license (Accountant, Engineer, Forester, Land Surveyor, Lawyer, and the medical professions). Finally, there are two professions that do not require any formal post-secondary education to qualify for the TN status at all:
  1. Management Consultant: This category generally receives a higher level of scrutiny from immigration inspectors because it is one of the two listed occupations under which one may qualify without any formal degree, and it continues to plague practitioners.

    • Role of Management Consultants: Management Consultants improve the managerial, operating and economic performance of public and private companies by analyzing and resolving strategic and operating problems and thereby improving the companyís operations. Management Consultants are normally independent contractors or employees of consulting firms under contract to U.S. companies.

    • CBP Officials and the Management Consultants: CBP inspectors consider the management consultant category under NAFTA to be an invitation for fraud and abuse. Therefore, the very flexibility that was built into the category as an advantage (as one of the few categories without an educational requirement) has made it into a potential pitfall for pro se and uninformed applicants. Conversely, a management consultant application is one that can benefit from clear legal analysis, careful documentation, and astute advocacy. With appropriate preparation and presentation, it can fill a great need when there may be no other option.

    • How to qualify as a Management Consultant: The CBP/USCIS officer may not accept a resume from the TN applicant as proof of the relevant work experience. Instead, the officer may require detailed letters from the TN applicantís previous consulting assignments or employment verifying that the experience is related to the duties that he or she will perform in the United States.

  2. Scientific Technician/Technologists: The Scientific Technician/Technologist category is another highly scrutinized category by CBP/USCIS officers because it also does not require a baccalaureate/licenciatura degree.

    • Role of the Scientific Technician/Technologist: The duties of the Scientific Technician/Technologist must be managed, coordinated and/or reviewed by a supervisor who is a professional in the field. The Scientific Technician/Technologist must also provide input to the supervisory professionalís own work.

    • Key skills to be possessed by a Scientific Technician: A Scientific Technician/Technologist must possess: (1) theoretical knowledge of any of the following disciplines: agricultural sciences, astronomy, biology, chemistry, engineering, forestry, geology, geophysics, meteorology, or physics; and (2) the ability to solve practical problems in any of those disciplines or the ability to apply principles of any of those disciplines to basic or applied research.

    • How to qualify as a Scientific Technician/Technologist: In order to qualify for the category, the Scientific Technician/Technologist must have acquired his or her theoretical knowledge through the "successful completion" of at least two years of training in a "relevant" educational program. If the Scientific Technician/Technologistís educational background is not clearly related to the occupation, an independent evaluation should be obtained to confirm the relevance of the training to the occupation prior to applying for the TN status.
The ability to enter the U.S. without having to meet the bachelorís degree requirement of the H-1B visa category is a great benefit for Canadian nationals that have the experience but not the degree.

Conclusion:

TN Canada (Trade NAFTA) visa has become one of the best alternatives to the H-1B for Canadian citizens. Not only is there no limitations on the number of TN Canada work visa available each year, there is no limit on the number of years a person can remain in TN status. Finally, the process of obtaining TN status is quick and relatively easy, and not all professions require a bachelorís degree. The major drawback of the TN Canada work visa is its lack of dual intent. Before applying for the TN Canada work visa you must make sure that your profession falls within the listing of qualifying professions as set out by NAFTA. With the emergence of TN Canada (Trade NAFTA) visa, professional Canadians have been able to access the U.S. market with greater ease and comfort.

The above article is brought to you by "VisaPro.com". VisaProís US Immigration Lawyer Services include K-1 Visa, K-3, Adjustment of Status, Green Card, and over 100 Immigration Services. The information in this article is not intended to be legal advice.

If you have questions specific to your case, we suggest that you consult with the experienced immigration attorneys at http://consultattorney.visapro.com

We cover the latest happenings on work visas in Immigration Monitor, our monthly newsletter. Click here to subscribe to Immigration Monitor.


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