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Trade NAFTA (TN) The TN category was established within Chapter 6 of the North American Free Trade Agreement among the US, Canada, and Mexico, and is intended to facilitate the development of trade and investment among the three treaty countries. The TN category permits Canadian and Mexican individuals holding professional credentials in certain fields to enter the US to pursue prearranged employment with a US employer on a temporary basis, but subject to an unlimited number of extensions of time. TN status does not permit self-employment or the development of a professional practice for the benefit of a professional corporation wholly-owned by the individual, nor does it permit an individual's admission for the purpose of looking for a job on speculation. Significantly,TN status does not incorporate the concept of dual intent - nonimmigrant admission with the concurrent intent to adjust status to permanent residence thereafter. This is a material departure from the opportunity afforded beneficiaries of H-1b, L, O, and E employment-based non-immigrant categories, and stands as the TN's chief disadvantage. An individual seeking admission in TN classification will have to overcome the presumption that he is entering for the purpose of immigration.
Qualifications TN classification is available to persons practicing one of a set of professions listed in the NAFTA treaty itself and hammered out during many rounds of intense negotiations. This approach contrasts with the broad ranging "specialty occupation" concept applicable to the H-1b category in which one of the key elements of securing the status is describing the position the beneficiary will be filling. This deprives individuals and would-be non-immigrants of a great deal of flexibility. Like the H-1b, however, the TN requires that an individual demonstrate that his qualifications meet the articulated profession and the job opening he is filling. This evidence must include
NAFTA permits the US to adopt different classification and admission procedures for Canadian and Mexican professionals, although beginning in 2004 the disparity has been greatly narrowed. Canadian citizens have always been able to pursue TN status on a one-stop basis at the port of entry or pre-inspection station – Customs and Border Protection officers conduct both the classification review with respect to the employer and position, as well as determine the individual's admissibility at the time of entry. Under interim rules which took effect in March 2004, Mexican citizens are subject to a two step process. First, classification is performed by consular officials during the conduct of a TN visa interview in which the professional presents the evidence of job match. Upon presentation of a TN visa at the border or preinspection station, the Mexican professional is then subject to an admissions interview by CBP, which does not readdress the award of the TN visa. Prior to 2004, NAFTA had permitted the US to impose a limit of 5500 Mexican TN visas per year, which the US tracked by requiring the filing and grant of a nonimmigrant visa and Labor Conditional Application for each professional. With the lifting of the cap, USCIS no longer requires the filings and preapproval of initial Mexican TN visas, and has passed classification duties to State. Mexican nationals must still obtain a visa, however.
Once admitted, individuals in TN status may stay within the US for one year. Thereafter, their employer may secure an indeterminate number of extensions to their authority to employ the professional by filing a nonimmigrant visa petition and granted LCA, the same requirements for extending an H-1b petition. Individuals may extend their status in the US pursuant to such grant by reentering the US with an updated employers' letter (Canadians) or by obtaining a new visa (Mexicans). Note that since the TN classification is deemed a temporary status, employers must demonstrate why they continue to need the professional's services, and, technically, the USCIS could refuse to extend further. Note also that USCIS rules do not permit appellate review of denials of extensions of nonimmigrant visas.
Change or Addition of Employers There are two ways of doing it: through a filing with the USCIS or by applying on re-entry at a port of entry. Of the two, application on re-entry is generally the better way to go. It is a fast, generally easy process, and the application is usually granted on the spot. Under USCIS rules, on the other hand, the employer must petition for the change or add by mail and the individual may not begin work until after grant. (This is in distinction to the process under H-1b, which permits commencement of work with the filing of the petition.) USCIS filing may, however, be appropriate where an individual has concerns about denial of readmission on unrelated grounds or has other requirements to maintain a physical presence in the US.
The professional must depart the US upon termination of employment, whether or not voluntary. There is no provision for the employer to pay transportation costs. If he finds a new job he must recommence the applicable TN process from the beginning.
Spouses and minor children of TN professionals may enter the US in TD (Trade Dependent) status for the duration of the principal's authorized stay. Neither spouses nor children may obtain employment authorization derived solely from their TD status.
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