The TN visa is a nonimmigrant (temporary) visa under the North American Free Trade Agreement (NAFTA) for persons who are Canadian or Mexican citizens (permanent residents do not qualify) to work professionally in the United States. The professional positions under NAFTA include accountants, scientists, teachers, engineers, pharmacists, and lawyers. The complete list of NAFTA positions and the requirements of each position can be viewed here.
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Table of Contents
A qualified person under the TN visa must (1) be a citizen of Canada or Mexico, (2) have a formal prearranged work agreement in the form of a job offer from a U.S. employer or a service contract when the person is an employee of a Canadian or Mexican entity that is providing professional service to a U.S. entity, and (3) have the qualifications to work in a professional position listed under NAFTA.
The original statutory wording for qualified persons for TN visas can be found in 8 CFR 214.6(a).
NAFTA Job Position
A NAFTA position usually requires a bachelor’s degree or a professional license. If the NAFTA position requires a specific degree, the degree cannot be substituted by a combination of education and experience. The person’s degree can be for a 3-year program under the TN visa.
Prearranged Work
The prearranged work under the TN visa must be a full-time or part-time job with a U.S. employer or the person must be providing professional services under a service contract between the TN visa worker’s Canadian or Mexican employer and a U.S. entity which means that the TN visa worker cannot be self-employed.
TN Visa Worker Cannot Be Self-Employed
The prearranged work under the TN visa cannot be the person providing services to a U.S. entity where the person is the sole or controlling shareholder or owner. A U.S. entity that is substantially controlled by the person (such as a sole proprietorship operated by the person in the United States) cannot be qualified as the U.S. entity under the TN visa.
Factors to determine if the person has substantial control over the U.S. entity include but is not limited to whether the person established the U.S. entity, has sole or primary de facto control over the U.S. entity (regardless of the percentage of shares they own), is the sole or primary owner, or is the sole or primary recipient of the U.S. entity’s income.
The initial TN visa grants a period of stay up to 3 years (the TN visa itself may only be 1 year for Mexicans) and the renewal (extensions of stay) is granted for up to an additional 3 years each time. There is no maximum limit on how many times the TN visa can be renewed.
Renewals that are filed and received by the USCIS before the TN visa’s expiration date allows the person to legally work an additional 240 days (8 months) throughout the time that the TN visa renewal petition is pending. However, international travel is not allowed during the time that the TN visa renewal petition is pending. Alternatively, the TN visa worker can file for a new TN visa instead of filing for a TN visa extension.
TN Visa Grace Period
The TN visa holder is allowed to enter the United States 10 days before the start date and stay an additional 10 days after the end date. However, the TN visa worker cannot work in those additional 20 days. There is also a 60-day grace period of authorized stay in the United States if the TN visa worker’s employment is terminated before the visa end date. Working is also not allowed during the 60-day grace period since its purpose is for the person to look for other employment or wrap up their affairs in the United States.
The TN visa has three main requirements that need to be satisfied: evidence must be provided to the USCIS, DOS, or CBP to show that: (1) the person has Canadian or Mexican citizenship, (2) the job position offered by the U.S. employer or the professional work the person will be providing on behalf of their Canadian or Mexican employer is under a profession listed in the NAFTA, and (3) the person is qualified to work in that NAFTA position.
Documents Required for the TN Work Visa (NAFTA Mexican or Canadian Worker)
The evidence provided to the CBP, DOS, or USCIS for the TN visa must show:
- (A)
- The person must be a Canadian or Mexican citizen
- Canadian or Mexican passport (it should include biographical pages, related visa pages and stamps that show U.S. admission)
- Arrival-Departure Record (Form I-94)
- (B)
- The job offered is a profession under NAFTA and it requires a NAFTA professional
Letter from U.S. employer should include:
- Purpose of employment
- Job duties (includes a summary of daily responsibilities)
- Education qualifications (may be required to include supervisor or employer’s education qualifications for certain classifications)
- Licenses (for certain classifications)
- Compliance with state law
- Length of stay
- Salary / Wage
- (C)
- The person is qualified for the position
- Diplomas, degrees, certificates, licenses, professional organizational memberships
- Foreign academic evaluation (if academic records are not from U.S., Canada or Mexico educational institutions)
- Letters from former employers to verify past work experience
- Business records (e.g., contracts, invoices, proof of payment, letters from current or former clients) to show past work experience if self-employed
The original statutory wording for the evidentiary requirements of the TN visas can be found in 8 CFR 214.6(d)(3).
The total time a TN visa takes is consisted of the processing time for the (1) TN visa petition (Form I-129) with the USCIS (or CBP at the port of entry), and/or the (2) visa application (DS-160) at a U.S. consulate or embassy overseas if the person is not already in the United States or is ineligible to do a change of status within the United States.
Canadian TN visa workers can choose to have their case processed and determined with the USCIS or by the CBP officer at the port of entry (border) whereas Mexican TN visa workers must go through consular processing at the U.S. consulate unless it is for an extension (or change of employer). For Canadian citizens, it is typically faster to apply for the TN visa at the port of entry (border) since it can be done once the person gathers all required documentation.
A rough estimate for the Form I-129 petition of the TN visa with the USCIS is around 3 to 5 months. Current estimates of the processing time can be checked here. Factors that influence the TN visa petition processing time usually include but are not limited to if there was any Request for Evidence (“RFE”) issued, and the caseload of the USCIS service center, port of entry and the U.S. consulate or embassy.
Premium Processing for Form I-129 (Expedited Service)
A rough estimate for the Form I-129 petition of the TN visa is around 3 to 5 months. However, a 15-day premium processing (Form I-907) is available for the Form I-129 part of the TN visa petition. Premium processing is an optional expedited service where the USCIS guarantees that the case will be processed within 15 calendar days (not business days). When a notice of intent to deny (NOID) or a request for evidence (RFE) is issued, a new 15 calendar days will start when the USCIS receives a response from the applicant. If the USCIS fails to process within the time frame, a refund of the service fee will be given and the case will continue to be expedited. Please note that USCIS’s guaranteed response may be an approval notice, denial notice, notice of intent to deny (NOID), request for evidence (RFE), or open an investigation for fraud or misrepresentation.
The current premium processing fee for the TN visa is $2500 USD and it can be requested when the original petition is submitted to the USCIS or an upgrade to premium processing can be done when the case is pending.
After the USCIS (or U.S. consulate or embassy, or CBP at the port of entry) approves the TN visa petition (Form I-129), the person will then need to change into their TN visa status. There are 3 ways to change into the TN visa status: (1) change of status (done in the United States), (2) physically entering the United States after consular processing (done outside of the United States), (3) approval at the border (at the port of entry).
Change of Status & Consular Processing
Change of status is usually for a person who is already in the United States with another valid nonimmigrant visa status and has maintained a lawful visa status throughout their time in the United States. On the other hand, consular processing is for a person who lives outside the United States or for a person who is ineligible to change their status in the United States due to noncompliance of U.S. immigration law (e.g., overstayed on their previous visa status, worked when they did not have valid U.S. work authorization, the visa status they used to enter the United States does not allow them to change into another type of visa status, etc.)
For a person who is residing overseas (outside the United States) or a person who is ineligible for change of status with the TN visa petition (Form I-129), consular processing or CBP processing at the border (at the port of entry) must be done to obtain the TN visa status.
Consular processing involves the person attending an in-person interview at the U.S. consulate or embassy usually in the person’s home country. In certain circumstances, a person can do consular processing in another country as a “Third Country National.” After the interview approval at the U.S. consulate or embassy, the person would have to be admitted entry into the United States by the CBP officer at the border (usually at the airport) which means that the person would have to physically enter the United States as the final step for the TN visa status to be activated.
Canadian TN visa workers can alternatively choose to have their TN visa petition processed and decided directly at the border (at the port of entry, international U.S. airport, U.S. pre-clearance/pre-flight station) by the CBP officer right before they enter the United States (or have their TN visa petition decided by the USCIS in advance and just change into their TN visa status at the border). Mexican TN visa workers must go through regular consular processing unless they already have a valid TN visa and are only applying to change into the TN visa status (such as a Mexican TN visa worker changing to a new employer with a TN visa that has not expired yet).
For a person who is already in the United States with another valid nonimmigrant visa, there are usually two options (or three options for Canadians) available to obtain the TN visa status:
(1) Change of Status: this is the more commonly chosen option where the person states that they would like to change their status without leaving the United States in their TN visa petition (Form I-129). If the person is eligible (no violations of U.S. immigration laws), then their nonimmigrant visa status will be changed upon the approved employment start date listed in the TN visa petition. In cases where the person’s change of status request is denied or the person needs to change it into consular processing, an application for action on an approved application or petition (Form I-824) may be required.
(2) Consular Processing or CBP Border processing: this must be chosen if a person cannot show that they have maintained lawful visa status in the United States or for any other reasons such as the person needs to travel internationally before the TN visa petition is approved. Canadian TN visa workers can have their TN visa petition processed and decided directly at the border (at the port of entry) by a CBP officer whereas Mexican TN workers would need to go through consular processing unless they already have a valid TN visa and are only applying to change into a TN visa status.
A change in employment for the TN visa worker usually means (1) the person changes to a different employer, (2) the person will be working part-time for more than one employer, (3) the person’s employment was involuntarily terminated, or (4) there was a material change in the person’s employment or TN visa eligibility.
Change in Employer
If the TN visa worker changes to a new employer, a new TN visa petition must be filed. The TN visa worker cannot start working for the new employer before their new TN visa petition is approved (which means it does not have the portability rule like the H1B visa).
TN visa workers who transfer to another office or branch under the same employer do not need to file a new TN visa petition unless it is a separately incorporated subsidiary or affiliate.
Concurrent Employment
The TN visa worker can work different part-time jobs (must still be a NAFTA position) for multiple employers at the same time, however, each employer must file a separate TN visa petition for the TN visa worker.
Amended Petition
An amended TN visa petition would be required if there is a material change in the terms and conditions of the TN visa worker’s employment or in the TN visa worker’s visa eligibility.
Early Termination
If the TN visa worker’s employment ends before their visa status expiration date, the person will have a 60-day grace period (or till their existing expiration date if it comes earlier) to stay in the United States to seek other employment, change their visa status, or take care of affairs before departing the United States. However, the TN visa worker is not allowed to work during that 60-day grace period.
Dependent family members (spouse and unmarried children under 21 years old) of TN visa workers are allowed to stay in the United States under the TD visa status but they are not allowed to work. Studying is allowed for TD visa holders.
The nationalities of the TD family members do not need to be the same as the principal TN visa worker, however, they would need to go through the extra step of consular processing to obtain a TD visa before entering the United States if they are not Canadian citizens.
Dual intent visas allow the foreign person to have both an intent to temporarily stay in the United States and an intent to permanently stay in the United States. The intention to permanently stay in the United States can be shown when the foreign person has a pending green card petition with the USCIS or an approved PERM labor certification from the U.S. Department of Labor.
The TN visas are not dual intent visas which means that the timing of any green card application or petition must be carefully strategized because having dual intention (which is possessing an immigrant intent and a nonimmigrant intent at the same time) is not allowed for TN visa workers.
Adjustment of Status With TN visa
Under the TN visa, immigrant intent (that is not allowed) will be considered to be shown when a person has filed for an adjustment of status (which is for persons changing into a green card holder status without leaving the United States) or for consular processing (which is for persons overseas or ineligible to adjust their status in the United States) to change into their green card holder status.
Pending Green Card Petition With TN Visa
The tricky part of the non-dual intent issue for the TN visa is when the person has a pending green card application or petition (such as having an approved Form I-140), because having a pending green card application or petition cannot be the only reason to deny a TN visa renewal (extension) or the TN visa worker to enter (or reenter) the United States after traveling internationally but it can be one of the factors considered when determining whether the person has immigrant intent (which is usually likely the case) or not. In other words, a TN visa worker having a pending green card application or petition does not completely ban the person from continuing to stay under the TN visa but it will be relatively hard to do so.
Troubles With Showing Dual Intent Under TN Visa
Showing an immigrant intent can cause issues with the TN visa holder’s eligibility to renew (extend) their visa or apply for other nonimmigrant (temporary) visas to travel to the United States. For example, a TN visa renewal (extension) will be denied if the TN visa worker filed for an adjustment of status (which shows immigrant intent) to change into their green card status.
Another issue that may arise when the TN visa holder shows an immigrant intent is when they return to the United States after traveling internationally. For example, a TN visa holder who has a pending green card application most likely be denied admission into the United States by the CBP officers at the border (e.g., airport) due to a higher possibility that the CBP officer will not believe that the TN visa worker is just planning on staying in the United States temporarily.
So, unlike people under visas (e.g., H1 visa, L1 visa) that allow dual intention, TN visa workers typically cannot travel internationally after they have filed for an adjustment of status (which shows immigrant intent) to change into their green card status and should be highly cautious of traveling internationally after they have a pending green card (immigrant visa) petition.
Avoid TN Visa Dual Intent Issues
Due to the reasons listed above, it would be a safer option for TN visa workers who need to travel internationally frequently or are born in countries that have serious visa backlog issues to change into a visa status that allows dual intent (such as the H1B visa or L1 visa) before filing for a green card petition.
The differences between the TN visa and the H1B visa include:
- (1)
- The H1B visa allows dual intention (the TN visa does not)
- (2)
- There is no limitation on how many TN visas can be given out each year (H1B visas are subjected to a total cap each year with a possibility of requiring the person to go through the H1B visa lottery)
- (3)
- There is no limitation on how many times the TN visa can be renewed (extended) whereas the H1B visa has a limit of 6 years
- (4)
- The H1B visa includes more types of professions than the TN visa
- (5)
- The TN visa worker can be employed by a Canadian or Mexican company to provide professional services to a U.S. entity on behalf of that Canadian or Mexican company whereas the H1B visa only permits the H1B visa worker to be an employee of a U.S. entity
- (6)
- The TN visas cost less than H1B visas
- (7)
- The TN visa is only available to Canadian and Mexican citizens (not permanent residents) whereas the H1B visa is not limited to certain countries
- (8)
- The processing time is typically faster for the TN visa
Difference in Dual Intent
The H1B visa is a good alternative for persons who qualify for TN visas but have plans to permanently immigrate (file for a green card petition) to the United States because it allows dual intent whereas the TN visa does not. TN visa workers who have a green card petition pending will face problems with their visa status.
Difference in Cap Limit
The H1B visas that can be given are limited to a certain amount each year whereas there is no limitation on how many TN visas can be given out each year which can be beneficial if there are too many H1B visas petitions that year and a lottery will be conducted to randomly select the chosen H1B visa petitions.
Difference in Start Date
H1B visa workers can only start working on October 1 of the same year (i.e., the first job on their H1B visa) whereas TN visas can start working on their approved requested visa date which can be any time during the year.
Difference in Time Limit
There is no limitation on how many times the TN visa can be renewed (extended) whereas the H1B visa has a limit of 6 years. After using up the 6 years of the H1B visa, the person would need to leave the United States for 1 year to be able to apply for a new H1B visa (go through the whole process again). It should be noted that although the TN visa does not have restrictions on how many times it can be renewed (extend the time spent on that TN visa), the person may be questioned about whether they truly only plan on staying in the United States temporarily.
Difference in Processing Time
The processing time for the TN visa is typically faster than the H1B visa which usually would take at least 3 months (with additional steps such as the LCA certification from the DOL and going through the lottery selection). The TN visa for Canadians can be processed and determined directly at the border once the person has gathered all required documentation.
Difference in Cost
The filing fees of the H1B visa cost more than the TN visa. For Canadian citizens, the filing fees of the TN visa can cost $56 applying directly at the border or $466 if applied with the USCIS in advance. For Mexican citizens, the filing fees of the TN visa cost $160 when applied with the U.S. consulate.
In comparison, the filing fees of the H1B visas can cost (1) $1720 for U.S. employers with 25 or fewer employees, (2) $2470 for U.S. employers with more than 25 employees, or (3) $6470 for U.S. employers that have 50 or more employees and 50% of those employees are in the H1B visa, L1A visa or L1B visa status (with certain exceptions). The number of employees calculated for H1B visa employers includes their full-time U.S. employees and employees in any of their U.S. affiliates or subsidiaries.
Additionally, the H1B visa requires the U.S. employer to pay for the return transportation costs of the H1B visa worker if their employment is terminated earlier than the visa end date whereas the TN visa does not have this requirement. Another potential filing fee of the H1B visa would be the cost of filing an amended H1B visa petition when the person changes work locations due to a new LCA certification from the DOL may be required.
Difference in Job Type
The H1B visa covers a wider range of professions than the TN visa which is restricted to the professions listed in the NAFTA. Thus, if the type of work does not fall under a profession listed in the NAFTA, then the person should alternatively file for an H1B visa instead.
Difference in Type of Work Relationship
The TN visa worker can be an employee of a Canadian or Mexican company coming to the United States to provide professional services to a U.S. entity whereas the H1B visa only permits the H1B visa worker to be an employee of a U.S. entity.
The TN visa is for Canadian and Mexican citizens under certain professions listed in the NAFTA to work temporarily in the United States. A NAFTA position usually requires a Bachelor’s degree or a professional license. The TN visa worker cannot be self-employed and is required to be employed by a U.S., Canadian, or Mexican employer to work in the United States.
For people who do not qualify for the TN work visa, the closest alternative would be filing for an H1b visa petition (Australians can file for E-3 visa petitions) to work in the United States. Some other similar work visas include the O1A visa petition for persons who have extraordinary ability in the sciences, education, business, or athletics, and the H2A visa for agricultural workers.
Another possible alternative to filing a TN visa petition would be to file for a green card petition which is a permanent immigrant visa and not a temporary work visa like the TN visa. Typically, a person who is qualifiable for a TN visa would choose to file for an EB2 green card (for persons who have at least a master’s degree or a bachelor’s degree and 5 years of post-college progressive work experience) or EB3 green card (for persons who have at least a bachelor’s degree). For more on green cards gained through work, please read the overview for employment-based green cards.
The main difference between a green card and a temporary work visa (such as a TN visa, L1 visa, O1 visa, H1B visa, P1 visa, TN visa, E2 visa, E1 visa, E3 visa) is that a green card holder can freely change jobs among different employers without needing additional filings or approvals from the U.S. government. Also, unlike temporary work visas, green cards are permanent so there is no set maximum time on how long a green card holder can stay in the United States.
When the TN visa workers decide that they would like to live in the United States permanently and do not want to be subject to the time limitations or the constant filing requirements to extend (renew) their temporary work visa, the next step for them is to file a green card petition. Typically, a person who is qualifiable for a TN visa would choose to file for an EB2 green card (for persons who have at least a master’s degree or a bachelor’s degree and 5 years of post-college progressive work experience) or an EB3 green card (for persons who have at least a bachelor’s degree).
However, it must be cautioned that due to the TN visa not allowing dual intent, there may be potential issues for the TN visa worker who needs to continue using a nonimmigrant visa throughout the time their green card petition is pending. The timing of when a TN visa worker’s green card petition is filed must be carefully strategized beforehand especially if the person was born in a country (not the country of citizenship) that has visa availability issues (such as China and India).
Furthermore, a person can qualify for an employment-based green card no matter where they are currently residing in the world. There is no pre-requisite as to the person being in some type of nonimmigrant visa status (such as a TN visa) or having an educational degree from a U.S. school. In other words, a person who does not have a U.S. degree and has never been to the United States can still qualify for an employment-based green card. Thus, even if a person is not in a TN visa status yet but does have the qualifications for a TN visa, they can alternatively choose to file for an employment-based green card petition instead.
If you have a TN work visa (Canadian or Mexican NAFTA professionals) immigration question, please fill out our contact us form or send us an email with some basic information about your background and your immigration needs. We will do our best to respond within 48 hours.
How we can help?
Kylie Huang Law’s immigration attorney will help identify whether the TN visa is the appropriate nonimmigrant visa category for the client’s (or the client’s beneficiary’s) professional background and if there are other visa options for the client (or the client’s beneficiary). We will work closely with our client to prepare a convincing case for their (or it’s) TN visa petition and we will also strategize on how the TN visa petition should be presented to achieve the best chances of approval. It is strongly advised and common practice to retain an immigration attorney for a TN work visa petition due to the complexities in the immigration process and visa requirements.
What does the typical process look like to retain (hire) us?
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- Fill out the form (with some basic information on what your immigration needs are)
- Sign up and log into the client portal to schedule an appointment online
- Attend scheduled appointment (typically a phone call or zoom meeting)
- Retainment (signing a contract to hire us)
- Start processing case
- Gathering required documents
- Preparing paperwork
- Confirming contents of documents that will be submitted
- Filing the case
- Following up on the status of the case
- Close the case when a final determination is issued
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- Fill out the form (on what your immigration needs are)
- Sign up and log into the client portal to schedule an appointment
- Attend scheduled appointment (typically a phone call or zoom)
- Retainment (signing a contract to hire us)
- Start processing case
- Gathering required documents
- Preparing paperwork
- Confirming contents of documents that will be submitted
- Filing the case
- Following up on the status of the case
- Close the case when a final determination is issued
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- Fill out the form (on what your immigration needs are)
- Sign up and log into the client portal to schedule appointment
- Attend scheduled appointment (typically a phone call or zoom)
- Retainment (hire us)
- Start processing case
- Gathering required documents
- Preparing paperwork
- Confirming content of documents that will be submitted
- Filing the case
- Following up on the case status
- Close the case when a final determination is issued