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TN NAFTA: Canadians and Mexicans

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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 status is valid for up to 3 years, renewable indefinitely. Unlike the H1B Visa, TN’s have no annual quota.

To qualify for TN status, an individual must work 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, no provision in US immigration law or related regulations 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 and when it may be best to change to another temporary visa status such as the H1B Visa (which does allow for dual intent).

Documentation and processing for the TN NAFTA differ 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, DHS removed the annual numerical cap on the number of Mexican professionals admissible to the US annually under NAFTA. The rule also eliminated the past requirement for Mexican-based TN NAFTA professionals to file a petition and corresponding labor condition application.

Pre-2004 Procedures for TN NAFTA Mexico

Prior to March 2004, the US required Mexico nationals seeking a TN to apply to USCIS. Mexican nationals could not just approach a border post for TN processing, as Canadian citizens were were allowed to do. To properly file this form with USCIS, a Mexican TN NAFTA applicant had to also submit a certified LCA. Upon USCIS approval, a 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

TN NAFTA petitions and LCAs are not longer required for Mexican TN applicants. Rather, Mexican citizen must apply directly to the US Department of State for a TN visa. DOS will then adjudicate the TN visa. 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. TN applicants can do this either at a US airport that handles international traffic, or at a US pre-clearance/ pre-flight station.

If a consular officer issues a TN visa to a Mexican national, it is valid for a maximum of one year. The DOS reciprocity schedule between the US and Mexico requires this validity limit. TN validity, however, does not determine a Mexican TN holder’s period of admission to the US in TN NAFTA status.

Mexican nationals with valid TN visas are admissible for up to 3 years in TN status.

Determining the Appropriate Period of Admission for Mexican TN NAFTA Holder

A Mexican national is admissible 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.

Immigration officers should admit Mexican nationals in TN status for the full period of intended employment, up to a maximum of 3 years. A letter or similar statement supporting the TN application signed by the prospective TN employer should indicate the intended period of employment. If the employment period exceeds TN validity, a border officer may still admit the TN applicant for up to 3 years regardless of the TN visa expiration date. However, to do so, the TN applicant’s passport must remain valid throughout that 3 year period. S/he must also be otherwise admissible to the US.

TN NAFTA Extension or Change of Employer

Both Canadian and Mexican requests for TN extensions and requests to add or change TN employers require Form I-129. However, a TN extension requires no LCA. A TN extension request on Form I-129 is not a petition for status within the meaning of §214(c)(1) of the INA. Therefore, it confers no appeal rights normally associated with a petition. An extension on Form I-129 is merely a vehicle to collect information necessary to adjudicate a TN extension.