TN status

TN status

TN (Trade NAFTA) status is a special non-immigration status unique to citizens of the United States, Canada and Mexico. TN status was created by virtue of the 1994 North American Free Trade Agreement (NAFTA). It allows American, Canadian and Mexican citizens the opportunity to work in the United States or Canada under a somewhat limited set of occupations. It bears a similarity, in some ways, to the H-1B visa, but also has many unique features. Within the TN set of occupations, an American, Canadian or Mexican can work for up to a year at a time (this is in the process of being extended to three years). However, the TN status may be renewed indefinitely in one-year increments, although it is not a 'permanent' visa and if US immigration officials suspect it is being used as a "de facto" substitute for a green card, they may elect to deny further renewals. The set of occupations permitted to petition for TN status is also quite a bit more limited than for the H-1B visa. [source:]

Canadian citizens

Applying for TN status is particularly streamlined for Canadian citizens. The Canadian must first obtain proof of a job offer, in the form of an employment letter detailing employment for not more than one year, and documentation (often in the form of a university degree and/or evidence of former employment) in the occupation area. This paperwork is then brought to the border (most commonly it is done upon entry to the USA from Canada, but entry in TN status is permitted at any port of entry), along with proof of Canadian citizenship and the $50 fee (plus an additional $6 at a land or sea crossing; this is included in airline tickets when arriving by air). The US immigration officer will then adjudicate the application on the spot and grant or deny TN status. If the decision is to grant TN status, the Canadian immediately enters the US and begins TN employment. If the decision is to deny, the immigration officer will often detail the shortcomings in the application; if these are relatively straightforward to correct, the Canadian will often correct the problem in a day or so and then return to the border to reapply.

Certain TN status categories are known to be more difficult than others. For example, 'Management Consultant' applicants will often be scrutinized closely to determine if they will really be serving as consultants, or are in practice simply 'managers'. (The latter is generally not allowed under TN status.) Similarly, 'Computer Systems Analysts' will often have their applications carefully examined to ensure that their qualifications and job duties truly rise to the level of Computer Systems Analyst, and that they are not in practice simply serving as computer programmers.

Once TN status is granted, it is good for a year but only for the specific employer for which it was originally requested. Changing employers will require the Canadian to return to the border and start from scratch with a new application. If employment with a single employer is desired for more than one year, it may be renewed indefinitely. Renewal is accomplished either by a mail-in renewal within the United States, or by returning to the border and, in effect, presenting a new application. Renewal is possible, in theory, indefinitely, but the TN status is not a substitute for permanent residency (a green card), and the border official has the discretion to refuse further renewals if she feels the ability for indefinite renewal is being abused. How this happens in practice depends largely on the mood of the individual border official. Some Canadians have successfully renewed TN status for a decade or more; others have found that after 3-4 years a testy border official cuts off further renewals.

Canadian citizenship for TN status purposes may be by descent or naturalization. Those with qualifications from sources outside Canada or the U.S. must prove equivalency to the U.S. requirements. There is no appeal recourse if one is refused TN status.

Comparison to H-1B visa

TN status has some similarities with the H-1B visa. However, because the TN status is adjudicated at the border, TN status can also be revoked at any time at the border (if a Canadian is re-entering the US), even if it is not up for renewal. Thus it is important to be sure that any application is perfectly airtight. But the most important difference is that TN status does "not" include the doctrine of dual intent. Therefore, Canadians or Mexicans on TN status must be careful if they desire to ultimately pursue the green card. Either they should first switch to the H-1B visa before applying for the green card, or they must carefully time things to ensure they do not attempt to renew TN status after the green card application is formally pending (generally meaning that I-485 package has been filed for TN holder; those pursuing consular process can renew until just before the interview appointment at an Immigrant Visa issuing US Consulate). TN status has become the better alternative recently for Canadian citizens, rather than trying for an H-1B visa which is most in demand.

TN visa

The TN status is sometimes informally referred to as a TN visa. However, because a Canadian does not formally need to request a TN visa at a US consulate, it is technically not a visa, but rather a status. The spouse (and dependent children) of someone with TN status may apply for "TD status", but TD status does not allow them to work, although they may attend school. In most states, non-resident tuition rates will apply for post-secondary institutions. If the spouse requesting TD status is not a Canadian citizen, he or she will usually still qualify for TD status, but must first request a formal TD visa at a US consulate.

Mexican citizens

The procedures for Mexican citizens applying for TN status are a bit more complex than for Canadians, although they have been significantly simplified. At one time, Mexicans were subject to an annual quota and to procedures similar to an H-1B visa. However, since January 1, 2004, a Mexican citizen must follow a similar procedure to Canadians, but they must first obtain a US TN visa at a US consulate (generally in Mexico). Once the TN visa stamp is obtained in the Mexican citizen's passport, they may enter the US in TN status in a similar manner to a Canadian citizen.

Controversy over TN status

TN status tends not to be as controversial as the H-1B visa. This is probably because the economic disparity between the US and Canada is not huge, so there is less potential for abuse of Canadian and US workers through the TN procedures. In the case of Mexican citizens, the TN procedures have not been used, it seems, sufficiently frequently to generate the kind of controversy that the H-1B visa generates.

TN status extension options

Renewal/extension of TN status can be done either by mail (which requires filing of form I-129 "Petition for a Nonimmigrant Worker" by the employer, along with proof of the TN holder's citizenship and education, and an extension letter similar to the original offer letter) or by duplication of the original process (for Mexican citizens, a trip to a US consulate; for Canadians leaving and re-entering US, document requirements are similar to those for obtaining the original TN).

In the event of a job termination, the individual must leave the United States within 10 days from the last day of employment or the last day TN status expires (whichever is less). Legally, during this period, the TN holder cannot remain in the USA to look for a new job. If the TN holder's intention is to try to secure new employment before departure, he or she must immediately change to a B2 (Visitor) visa before searching for a new position. This can be done with a form I-539, "Application to Extend or Change Nonimmigrant Status." The TN holder must submit this form immediately following when the TN is terminated, because it must be in the hands of Citizenship and Immigration Services (USCIS) before the 10 days pass.

Correction regarding the 10-day grace period: There is a 10 day period that the immigration inspector may add on to the end date of a H-1b nonimmigrant’s stay in the U.S. [see Title 8 Code of Federal Regulations section 214.2(h)(13)(i)(A)] however that 10 day period does not allow for continued employment, and if the individual is terminated, there is no 10 day grace period for him/her to depart the U.S.

ee also

* Canadian nationality law
* E-3 visa
* United States Permanent Resident Card
* United States citizenship

External links

* [ U.S. State Department information, Canadian and Mexical NAFTA professional workers]
* [ U.S. State Department update on NAFTA procedures, January 2004]
* [ TN Visas: Professionals under NAFTA]
* [ Working in Canada under NAFTA]
* [ Online forum for Canadians to ask their TN questions]
* [ U.S. Department of State Foreign Affairs Manual on TN ]
* [ TN Visa information, private law firm]

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