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TN NAFTA: Canadians and Mexicans

Mexico Beach Tulum 149078006 TN NAFTA: Canadians and MexicansTN NAFTA is temporary work status for qualifying Canadian and Mexican nationals under the North American Free Trade Agreement. TN NAFTA status is issued for up to 3 years, renewable indefinitely. Unlike the H1B Visa, there is no annual quota on the number of individuals who can receive TN NAFTA status in any given year.

To qualify for TN NAFTA status, an individual must be engaged at a professional level in one of the occupations or professions on the TN occupation list. Spouses and unmarried children under 21 may accompany the principal TN holder in TD (Trade Dependent) status. However, TD’s do not have authorization to work while in the US.

The TN NAFTA classification does not allow for “dual intent,” that is, there is no provision in US immigration law or related regulations that allows a TN holder to apply for a Green Card (US permanent residence) while holding TN status. In fact, due to the complexities of dual intent, if a TN holder is considering such a move, it is wise to seek counsel on whether it may be best to change to another temporary visa status such as the H1B Visa (which does allow for dual intent), and if so, when might be the appropriate time to do so.

Documentation and processing for the TN NAFTA are different for Canadian and Mexican nationals.

TN NAFTA Self-Employment, Entrepreneurship

The TN NAFTA category does not offer an opportunity for entrepreneurs to set up a business entity that, in turn, sponsors them for TN NAFTA classification. In fact, the regulations specifically disallow self-employment of TN holders. More specifically, TN NAFTA holders may not be sole owners of, or hold a controlling interest in, their sponsoring entities.

Mexican TN NAFTA Processing

On March 10, 2004, the Department of Homeland Security (DHS) removed the annual numerical cap on the number of Mexican professionals that may be admitted to the US annually under NAFTA. The rule also eliminated the past requirement for a Mexican-based TN NAFTA professional to file a petition and corresponding labor condition application.

Pre-2004 Procedures for TN NAFTA Mexico

Prior to March 2004, a citizen of Mexico seeking to come to the US as a TN nonimmigrant was required to make an application to USCIS and was not able to just approach a border post for TN processing as Canadian citizens were were allowed to do. To properly file this form with USCIS, a TN NAFTA applicant from Mexico had to also submit a certified Labor Condition Application (LCA) from the US Department of Labor (DOL). Upon USCIS approval of the TN NAFTA application, the Mexican national then had to apply to the US Department of State (DOS) for a TN NAFTA visa to enter the US.

Post-2004 Procedures for TN NAFTA Mexico

The TN NAFTA petition and LCA requirement for Mexican TN NAFTA applicants have now been eliminated. Rather, a Mexican citizen who wants to come to the US in TN status must apply directly to the US Department of State for a TN NAFTA visa. DOS will then adjudicate the TN NAFTA applicant’s eligibility for a TN visa, and upon approval and issuance of a TN visa, the applicant may then apply for admission to the US at a US Class A port-of-entry, at a US airport that handles international traffic, or at a US pre-clearance/ pre-flight station.

A TN NAFTA visa issued to a Mexican national by a US consular officer is valid for a maximum of one year. The TN NAFTA visa validity limitation is required by the DOS reciprocity schedule between the US and Mexico. The validity of the TN, however, does not determine the period of time that a Mexican TN holder may be admitted to the US in TN NAFTA status.

A Mexican national with a valid TN visa may be admitted to the US for up to 3 years in TN NAFTA status.

Determining the Appropriate Period of Admission for Mexican TN NAFTA Holder

A citizen of Mexico may be admitted to the US with a TN visa for up to 3 years if his/her passport will remain valid throughout this period and s/he is otherwise admissible to the US.

The period of initial admission for Mexican nationals in TN NAFTA status should be for the full period of intended employment, up to a maximum of 3 years. A letter or similar statement supporting the TN NAFTA application for admission and signed by the prospective TN employer should indicate the intended period of employment. If the period of employment will exceed the validity of the TN NAFTA visa, the applicant for admission may still be admitted up to 3 years, regardless of the TN NAFTA visa expiration date, if the TN NAFTA applicant’s passport will remain valid throughout this period and the s/he is otherwise admissible.

TN NAFTA Extension or Change of Employer

Requests for TN extensions of stay and requests to add or change TN employers must be submitted on Form I-129 (for both Mexican and Canadian nationals). However, no LCA is required to obtain a TN extension. Note that the TN extension request made on Form I-129 is not a petition for status within the meaning of §214(c)(1) of the Immigration and Nationality Act (INA) and does not confer any of the appeal rights normally associated with a petition. The Form I-129 in the extension context is merely the vehicle by which the Department collects the information necessary to make a determination on the TN extension application.