TN status

The governments of Canada, Mexico, and the United States negotiated a regional free trade agreement, which came to be known as NAFTA, during the 1980s.[5] The leaders of the three nations signed the agreement in their respective capitals on December 17, 1992.[6]

NAFTA included an Appendix 1603.D.1 that required each of the member-states to institute laws and regulations for the free temporary movement of certain professionals among the three member-states with special simplified immigration procedures.[7]

NAFTA was implemented in US federal law in 1993 through the North American Free Trade Agreement Implementation Act, H.R. 3450, Pub. L. 103-182, 107 Stat. 2057.[8][9][10]

After approval of the measure by the US House and US Senate, President Bill Clinton signed the law on December 8, 1993, placing NAFTA into effect on January 1, 1994.[11]

The measure inserted a new sub-paragraph into section 214 of the Immigration and Nationality Act, codified at United States Code, title 8, section 1184, that states:[10]

An alien who is a citizen of Canada or Mexico, and the spouse and children of any such alien if accompanying or following to join such alien, who seeks to enter the United States under and pursuant to the provisions of Section D of Annex 1603 of the North American Free Trade Agreement (in this subsection referred to as 'NAFTA') to engage in business activities at a professional level as provided for in such Annex, may be admitted for such purpose under regulations of the Attorney General promulgated after consultation with the Secretaries of State and Labor, for purposes of this Act, including the issuance of entry documents and the application of subsection (b), such alien shall be treated as if seeking classification, or classifiable, as a nonimmigrant under section 101(a}(15).

The regulations described in the NAFTA Implementation Act were promulgated on December 30, 1993, in a regulation entitled "Temporary Entry of Business Persons Under the North American Free Trade Agreement (NAFTA)".[12]

It amended section 214.6 of the Code of Federal Regulations, title 8, to provide procedures for "Canadian and Mexican citizens seeking temporary entry to engage in business activities at a professional level".[13]

The section states that "Pursuant to the NAFTA, an applicant seeking admission under this section shall demonstrate business activity at a professional level in one of the professions set forth in Appendix 1603.D.1 to Annex 1603" and then sets forth the professions agreed upon by the NAFTA member states.[14]

A person may be eligible for TN status, if:[1]

• The prospective employee is a citizen of Canada, or Mexico;
• The profession is one cited under the NAFTA treaty;
• The company seeking to pursue TN status with the prospective employee meets qualifications cited under the NAFTA treaty;
• The prospective employee has been issued a formal, written full-time or part-time offer of employment in the United States, Canada or Mexico;
• The prospective employee has the qualifications to practice in the profession in question.

Once TN status is granted, it is valid for up to three years,[18] but only for the specific employer for which it was originally requested. Changing employers will require to start from scratch with a new application. If employment with a single employer is desired for more than three years, it may be renewed indefinitely.

Prior to October 16, 2008, the initial period of stay for a TN status holder was up to one year only.[19]

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.

However, the TN status may be renewed indefinitely in three-year increments, but it is not a permanent visa and if U.S. immigration officials suspect it is being used as a de facto green card, then 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.[20]

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 border official may deny renewal.[21]

The spouse and dependent children under the age of 21[1] of a TN professional may apply for TD status (TD-1 for the family members of a Canadian citizen worker, or TD-2 for those of a Mexican worker). TD status can't be granted for longer than the period of time granted to the principal TN professional holder.[1]

TD status does not allow them to work, although they are permitted to attend school.[1] 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.

The US consulates report 3,000 to 4,000 TD visas issued in each US fiscal year from 2007 to 2009; this includes visas issued both to family members of Mexican TN-2 visa holders and to non-Canadian family members of Canadian TN-1 entrants.[22]

Applying for this status is a fairly streamlined procedure. The Canadian at the U.S. port of entry, must:[23]

• Request TN status;
• Present a proof of a job offer[note 1] from a U.S.-based employer, in the form of an employment letter detailing a temporary employment for not more than three years;
• Bring the original documentation and provide a copy of the applicant's college degree and employment records which establish qualification for the prospective job;
• Present a proof of Canadian citizenship (passport); and
• Pay a fee of US$50 (plus an additional $6 at a land or sea crossing; this is included in airline tickets when arriving by air).

The U.S. 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 U.S. 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.

Alternatively, a prospective TN employer can apply for a change of visa status to TN on the person's behalf.[1] The procedure for doing this is by submitting Form I-129 petition with a US$460[24] fee to the appropriate (California or Vermont)[25] USCIS service center.

If USCIS approves Form I-129, the prospective worker may then apply to CBP for admission to the United States as a TN nonimmigrant by providing the following documentation to a CBP Officer at certain CBP-designated U.S. ports of entry or at a designated pre-clearance/pre-flight inspection station:

• Proof of Canadian citizenship; and
• Approval notice from USCIS for Form I-129.

In addition, when applying for admission, the applicant should have in their possession a copy of the Form I-129, and all supporting documentation that was submitted to USCIS, in order to respond to any questions about eligibility. The applicant should also be prepared to pay any applicable inspection fees at the time that he or she seeks admission. If a CBP officer finds the applicant to be eligible for admission, the person will be admitted as a TN non-immigrant.[1]

A TN visa holder may bring their domestic partner to live with them. The domestic partner will get a B2 visa up to one year, but most likely only 6 months. They will not be able to work for a US company in the U.S. or study in the U.S.[26]