The TN category was established by the North American Free Trade Agreement (NAFTA) among the U.S., 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 U.S. to pursue prearranged employment with a U.S. employer on a temporary basis, but subject to an unlimited number of extensions of time. TN status does not permit self-employment, nor does it permit an individual's admission for the purpose of looking for a job.
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 notable difference from H-1b, L-1, O, and E employment-based nonimmigrant 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.
TN classification is available to persons practicing one of a finite 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 nonimmigrants of a great deal of flexibility. Like the H-1b, however, the TN requires that an individual demonstrate that he is qualified for the profession and the job opening he is filling.
Evidence submitted for TN status must include:
NAFTA permits the U.S. to adopt different classification and admission procedures for Canadian and Mexican professionals.
Canadian citizens who are outside of the U.S. have two options. They may pursue TN status through a one-step process at the port of entry or pre-inspection station – Customs and Border Protection (CBP) 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. Alternatively, a two-step process is available with the U.S. employer first obtaining approval of the classification by filing a Petition for Nonimmigrant Worker with USCIS on behalf of the Canadian citizen, followed by the Canadian citizen proceeding to the border with proof of Canadian citizenship, a full copy of the petition, and the approval notice. At that point, CBP will determine the individual’s admissibility, but are supposed to defer to USCIS on the merits of the TN employment.
Mexican citizens outside of the U.S. must go through a two-step process. First, the individual must apply for a TN visa through the Department of State. Classification is performed by Department of State consular officials during a TN visa interview at which the professional presents the evidence of the job and their professional credentials. After receiving a visa, the Mexican professional proceeds to the border where he is then subject to an admissions interview by CBP, which is supposed to defer to the visa approval on the merits of the TN employment.
If the Canadian or Mexican citizen is already in the U.S. in another status and wishes to change their status to TN without departing the U.S., the U.S. employer files a Petition for Nonimmigrant Worker that also serves as the employee’s application for change of status.
There is no limit or cap on the number of TN professionals allowed to enter the U.S.
Once admitted, individuals in TN status may stay within the U.S. for three years. Thereafter, their employer may secure an indeterminate number of extensions of their authority to employ the professional by filing a Petition for Nonimmigrant Worker requesting an extension of status for their employee, or by having the employee return abroad to Canada or Mexico with an updated employer letter and reenter through the same procedures they used initially (by appearing at a port of entry (Canadians), or after obtaining a visa (Mexicans)). Note that since the TN classification is deemed a temporary status, employers must demonstrate why they continue to need the individual’s professional's services, and, technically, USCIS could refuse to extend further. Note also that USCIS rules do not permit appellate review of denials of extensions of nonimmigrant status.
There are two ways for an individual in TN status to change employers or obtain authorization for a concurrent position: through the employer filing a petition with the USCIS, or by returning abroad and applying on re-entry. Note that citizens of Mexico whose TN visas are still valid will not have to apply for a new visa; they can appear directly at a port of entry with the new employer letter. Of the two, application on re-entry is generally the better way to go. It is a fast and generally easy process, the application would be granted on the spot, and the TN can begin the new employment as soon as they return to the U.S.
If, however, the employer files a petition and the individual remains in the U.S. the individual may not begin work until after the petition is granted (which can take months). This is in distinction to the process for H-1bs, which permits commencement of the new employment with the filing of the H-1b petition. USCIS filing may, however, be appropriate where an individual has concerns about denial of readmission on unrelated grounds, or has other reasons to remain in the U.S. Also, this process can be accelerated through premium processing.
Upon termination of employment (whether voluntary or involuntary), the TN professional may remain in the U.S. for up to 60 days, or until the end of his authorized period of stay, whichever is shorter). There is no requirement for the employer to pay transportation costs. If the TN finds a new job he must recommence the applicable TN process from the beginning.
Spouses and minor children of TN professionals may enter the U.S. 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. However, spouses can seek employment based nonimmigrant status in their own right.