TN-1 / TN-2 Visas
Generally, a citizen of a foreign country who wishes to enter the United States must first obtain a visa, either a nonimmigrant visa for a temporary stay or an immigrant visa for permanent residence. The visa allows a foreign citizen to travel to a U.S. port of entry and request permission of the U.S. immigration inspector to enter the United States. Nonimmigrant visas ("NIVs") are issued to individuals who intend to remain in the United States temporarily. NIVs are designated by letters of the alphabet. The type of visa a foreign national is issued depends principally upon the nature of the foreign national's proposed activities in the United States, the duration of those activities, and in some instances, his or her nationality. It is often easiest to understand NIVs and their limitations, criteria, and characteristics by distinguishing them in terms of the principal activity authorized by the visa: (a) employment-based NIVs; (b) NIVs for students and exchange visitors; (c) NIVs for business visitors and tourists; and (d) other NIV categories including diplomats, international civil servants, and family relatives.
Temporary worker visas are for persons who want to enter the United States for employment lasting a fixed period of time and are not considered permanent or indefinite. Most of these visas requires the prospective employer to first file a petition with the U.S. Citizenship and Immigration Services ("USCIS"). An approved petition is required to apply for a work visa.
TN Visas for Canadians and Mexicans
The North America Free Trade Agreement ("NAFTA") provides for significant immigration-related benefits for citizens of Canada (TN-1) and Mexico (TN-2) who seek to enter the United States to work in a professional area that is one of a listed number of designated occupations. The visa application process for Canadian and Mexican TN visas differs; however, the criteria to qualify for the TN visa are the same for citizens of both countries. Canadian and Mexican professionals who have a job offer from a U.S. employer and can demonstrate that they qualify for one of the listed occupational categories may enter the United States for one year. Most of the occupational categories require attainment of a relevant university degree.
Canadian citizens apply for TN status directly at a U.S. port of entry. No consular appointment or pre-approved petition is required. Upon approval, a new Form I-94 is issued as evidence of TN status. Mexican citizens are not required to have a pre-approved petition; however, they must apply for a TN visa at a U.S. consular post in Mexico. Mexican applicants may then apply for admission at a U.S. port of entry by presenting the visa along with a valid passport. Upon admission, the immigration officer will issue a new Form I-94 reflecting the individual’s TN status. The TN visa application should include evidence of qualification for the TN occupational category, as well as a support letter from the prospective U.S. employer verifying the offer of employment, its general terms, the nature of the qualifying position, and how it relates to one of the occupations on the NAFTA list. The application should also include evidence that the applicant possesses any necessary university degree. It is advisable to bring the original degree, as well as a formal educational evaluation of any degree that is not from a U.S., Canadian, or Mexican institution.
Renewals can be obtained in the same manner as the original visa. In addition, individuals who hold TN status and do not wish to depart the United States may file for an extension of TN status by filing a petition with the appropriate USCIS Service Center. There is no legal limit on the number of times a TN may be renewed or extended; however, caution must be exercised in obtaining successive renewals. TN visas require that the applicant demonstrate that his or her intent to remain in the United States is strictly temporary.
Obtaining TN status is preferable to obtaining an H-1B temporary work visa for a number of reasons. First, advanced approval from the Department of Labor and the USCIS is not required. Consequently, the TN professional can enter the United States within days rather than after weeks or even months of initial processing. Similarly, the prevailing wage and record-keeping requirements, which govern H-1B cases, do not apply to TN professionals. Also, the six-year limit on H-1B status likewise does not apply to TN professionals. On the other hand, a TN professional must be able to show that he or she has a residence abroad to which he or she intends to return and that he or she is not an intending immigrant, while those requirements do not attach to H-1B visa holders. Thus, special care must be taken when a TN professional applies for permanent resident status because it is conceivable that such an application could cause problems for his or her TN status.
Employment while in TN status is restricted and may only be performed for the sponsoring employer. TN nonimmigrants may work for multiple employers, but only if the multiple employer situation was set forth in the application for TN status. Spouses and children of TN status individuals are eligible for a TD visa. Canadians may obtain their TD status at a port of entry. If the dependent is not a Canadian citizen, he or she must first apply for a visa before entering the United States. Mexican TD applicants must request a TD visa at a U.S. consulate in Mexico prior to traveling to the United States. Dependents are not eligible to apply for employment authorization and may not work in TD status.
Applying for a Visa
A Canadian may apply for admission to the United States in TN status at a major land point of entry, a United States international airport, or at a United States pre-clearance/pre-flight inspection at a Canadian international airport. No visa or specific form is required. A Canadian must simply show proof of Canadian citizenship and qualification in his or her profession. The documentation to be presented includes the following:
A letter from the employer introducing the company, its need for the Canadian's temporary professional services, the nature of the services he or she will render, and the compensation he or she will receive. This letter should indicate the anticipated period of temporary employment.
Evidence that the Canadian has the necessary education or licenses and/or experience. This documentation may take the form of copies of diplomas, licenses, evidence of membership in professional organizations, and letters verifying experience in certain cases. Please note that it may be necessary to evaluate university degrees from countries other than Canada if the Canadian lacks licenses or evidence of membership in professional organizations or other documentation of his or her qualifications.
Evidence of Canadian citizenship. Please note that a Canadian passport is not required unless the Canadian applies for TN status at an international airport in the United States when returning from travel outside of the Western Hemisphere.
Applications for admission in TN status are presented to the Customs and Border Protection ("CBP") officials either at land points of entry, USCIS facilities located inside Canadian international airports, or at U.S. international airports. Applicants should anticipate that two or more hours will be required to process their application for TN status. The amount of time required for processing varies according to apparent factors such as the day of the week, the time of day, and where the application is made. Our attorneys will advise the employer of potential employees regarding when and where they should apply after being informed of their itinerary.
A Canadian may be admitted initially in TN status for three years. He or she is given a CIS Form I-94 with the classification symbol TN, upon payment of the required fee, which presently is $50.00. The I-94 is marked "multiple entry." Therefore, this document is used like a visa to reenter the United States for up to one year. Thereafter, either a request for an extension must be made to the USCIS or a new TN application must be presented to the CBP officials at the border or at an airport. Eligible TN nonimmigrants may now be allowed to receive extensions of stay in increments of up to three years instead of the prior maximum period of stay of one year.
Mexican citizens may apply at consular sections around the world for a TN visa. As part of the visa application process, an interview at the embassy consular section is required for most visa applicants. Depending upon demand and capacity, it may be several days or several weeks before a visa application interview appointment can be scheduled at the desired U.S. Consulate. After attending the interview appointment, most consulates are able to return passports with the issued visa to the applicant within 2-3 business days, though processing times vary from one consulate to another and upon completion of the required security and background checks. As part of the visa interview, a quick, two-digit, ink-free fingerprint scan can generally be expected. Each Mexican applicant for a TN visa must submit these forms and documentation, and submit fees as explained below:
Nonimmigrant Visa Applications, Forms DS-156 and DS-157. Submission of Form DS-157 is required for all male applicants between 16-45 years of age. The application fee for Form DS-156 is $131.00. In addition, there is a reciprocity fee of $100.00 for visa issuance to Mexican applicants.
A passport valid for travel to the United States and with a validity date at least six months beyond the applicant's intended period of stay in the United States.
One (1) 2x2 passport-style photograph.
A letter from the employer introducing the company, its need for the Mexican's temporary professional services, the nature of the services he or she will render, and the compensation he or she will receive. This letter should indicate the anticipated period of temporary employment.
Evidence that the Mexican has the necessary education or licenses and/or experience. This documentation may take the form of copies of diplomas, licenses, evidence of membership in professional organizations, and letters verifying experience in certain cases. Please note that it may be necessary to evaluate university degrees from countries other than Mexico if the Mexican lacks licenses or evidence of membership in professional organizations or other documentation of his or her qualifications.
Upon receipt of the TN visa, the individual will apply for admission in TN status with the CBP officials either at land points of entry, USCIS facilities located inside Mexican international airports, or at U.S. international airports. A Mexican may be admitted initially in TN status for three years. The individual is given a USCIS Form 1-94 with the classification symbol TN, which will indicate a date upon which the person's TN status will expire. Prior to that expiration, either a request for an extension must be made to the USCIS or a new TN application must be presented at a U.S. Consulate abroad. Under a new rule, eligible TN nonimmigrants may now be allowed to receive extensions of stay in increments of up to three years instead of the prior maximum period of stay of one year.
Completing Form DS-160, Online Nonimmigrant Visa Application, is the first step in the visa application process. After you have submitted Form DS-160, print the confirmation page and bring it to your interview. Next, pay the non-refundable visa application fee, if you are required to pay it before your interview. Then, make an appointment for an interview at the U.S. Embassy or Consulate where you pay to apply for your visa. You can learn how to schedule an appointment for an interview, pay the application processing fee, review embassy-specific instructions, and much more by visiting the website of the U.S. Embassy or Consulate where you will be applying. The wait time for an interview appointment for applicants can vary, so early application is strongly encouraged. During the visa application process, an ink-free, digital fingerprint scan will be taken. Some visa applications require further administrative processing, which takes additional time after the visa applicant's interview by a Consular Officer.
Two types of computer professionals are eligible for TN status: " Computer Systems Analysts" and "Engineers." Discussions with high-ranking officials at USCIS headquarters in Washington confirm that the USCIS reads these two job titles literally. Consequently, the only computer professionals who qualify for TN status are "Systems Analysts" and "Computer Engineers." The treaties indicate that to qualify for TN status as a Computer Systems Analyst, the Canadian or Mexican candidate must have either a Baccalaureate degree in Computer Science or a Post-Secondary Diploma and three years of experience as a Systems Analyst. The Canadian or Mexican candidate for the position of Computer Engineer is required to have a Baccalaureate degree in Engineering or a state or provincial Engineer's license. In addition to the required education and/or experience or licensing, a TN Canadian or Mexican must have an offer of employment in his or her field in the United States.
No assurances regarding the issuance of visas can be given in advance. Therefore final travel plans or the purchase of non-refundable tickets should not be made until a visa has been issued.
Unless canceled or revoked, a visa is valid until its expiration date. If your passport expires, you may use the valid visa for travel and admission to the United States along with your new valid passport containing the same biographic data. Do not remove the visa page. Instead, carry both passports together.
If the consular officer finds it necessary to deny the issuance of a visitor visa, the applicant may apply again if there is new evidence to overcome the basis for the refusal.
More detailed, case-specific advice is available from Matthews Immigration Group by scheduling a consultation.