TN Status: Employment Option for Canadian and Mexican Citizens04 Oct 2021
Under the U.S.-Mexico-Canada Agreement (USMCA), qualifying Canadian and Mexican nationals can work in the United States in a wide range of positions under the USMCA professionals (TN) classification. Although the TN classification has some key limitations, in many cases it can provide employers with a streamlined process for bringing in professional workers from Canada and Mexico.
Who Qualifies for TN Status?
The TN category was created pursuant to the North American Free Trade Agreement (NAFTA), which was eventually replaced by the USMCA. It is only available to citizens of Canada and Mexico. The foreign national must be coming to the United States to perform work for a U.S. company in any one of the sixty-three professions listed under the USMCA. This broad list of professions ranges from computer systems analyst and graphic designer, to apiculturist (i.e. beekeeper) and hotel manager. The USMCA also lays out the minimum education, licensing, and/or experience requirements the candidate must possess to qualify for each profession.
Unusual Filing Procedures for TN Allows for Speedy Adjudication
Although a standard I-129 petition may be filed by an employer on behalf of a proposed worker, most TN cases are filed using special procedures that allow for much quicker processing. A Canadian citizen does not need to obtain a visa to enter the U.S. in TN status. The applicant is permitted to file a TN application in person at a U.S. port of entry (POE) or preclearance / pre-flight inspection station. If approved, the Canadian employee / beneficiary can then enter the United States immediately in TN status. A Mexican citizen, on the other hand, must obtain a visa before entering the U.S. in TN status. Rather than having to first file the petition with the U.S. Citizenship and Immigration Services (USCIS), however, thanks to a change in procedure in early 2014, Mexicans can now file the TN application directly at a consulate.
TN Useful for Extended Stays, But Immigrant Intent Not Permitted
Initial TN status is granted for up to three years and is renewable indefinitely, as long as the individual continues to meet the requirements of the TN classification. Unlike the H1B and L-1 nonimmigrant classifications, TN status does not specifically allow for dual intent. Thus, it is important that the TN worker and employer obtain appropriate immigration advice if there is a need or desire to pursue U.S. permanent resident status or otherwise abandon ties to the home country.
TD Status for Dependents
Dependents of TN professionals, including spouses and unmarried children under 21 years of age, are eligible for trade dependent (TD) status. Such status does not provide work authorization, but those in TD status may attend school.
Additional Benefits of TN Classification
There are certain additional benefits of the TN classification compared with the H1B status. Unlike the H1B classification, there is no cap or limit on the number of TN applications that may be approved each fiscal year. There is also no requirement for a prospective employer of a TN professional to file a labor condition application (LCA). Further, if a foreign national is subject to a home-residency requirement after a stay in J-1 or J-2 status, this would not prevent the individual from working in TN status.
Management Consultants Face Scrutiny
One of the TN professions allowed under the USMCA is that of management consultant. Unlike nearly every other profession on the list, the minimum requirements for management consultant can be met based on experience alone. This, in addition to the perceived versatility of duties for this profession, has made the management consultant one of the most popular professions used in TN filings. It has also led to skepticism among government adjudicators regarding TN cases filed under this category. Accordingly, TN applicants filing for management consultant positions are urged to seek experienced legal counsel before proceeding with such a case.
Although limited to Canadian and Mexican citizens, those who qualify for TN status may find this to be a worthwhile option for working in the United States. It also provides employers with a flexible option for employing professional workers on a temporary basis. Those interested in filing for TN positions are encouraged to schedule a consultation with a Murthy Law Firm attorney.
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