General Requirements and Special Conditions of TN Visa Category:
1. General Requirements
In August 1992, the United States entered into the North American Free Trade Agreement (NAFTA), which provides for expedited admission of business persons from each country. The immigration related provisions of NAFTA cover four categories of business persons from Canada and Mexico seeking entry into the United States:
- TN professionals
- B-1 temporary business visitors
- E traders and investors
- L-1 intracompany transferees
Professionals entering in the TN category can work for a U.S. entity in several situations:
- Qualifying professionals who are employees of U.S. companies can work for those companies on a temporary basis and be paid by them in an identical manner to H- 1B professionals
- Qualifying professionals who are self-employed can work for U.S. companies if a service contract exists between the self-employed professional and the U.S. companies providing for the rendering of professional services.
- Qualifying professionals who are employees of Canadian or Mexican companies can work for U.S. companies.
2. Duration of stay
An alien may be admitted to the United States in TN status for the period of time required by the employer, up to a maximum initial period of stay of one year. TN professionals can receive extensions of stay in one-year increments, with no outside limit on the total period of stay. The only limitation on the duration of stay of TN non-immigrants is that the purpose of the stay must continue to be temporary.
3. Procedures for the TN category
Canadian professionals are designated as TN-1 non-immigrants as distinguished from the TC classification under the FTA. Mexican nationals seeking TN status must apply for a non-immigrant visa at a U.S. consulate. Under prior procedures, Mexican citizens were required to comply with a procedure that was nearly identical to that for H-1B classification for nationals of other countries. The employer was required to file a petition for TN status with the USCIS, and the petition was required to be supported by a labor condition application (LCA).
4. Special Conditions
Non-immigrant intent and permanent residence papers:
Limits on self-employment:
The admission of self-employed TN professionals has raised complex issues under NAFTA. The TN rules codify agency policy on self-employment by TN professionals. In earlier directives, the Service stated that a TN professional cannot establish a business or practice in the United States in which he or she will be self-employed.
Strike provisions of NAFTA:
Both Canadian and Mexican nationals seeking entry in TN status are subject to the “strike” provisions in NAFTA. The strike or work stoppage component of the treaty provides that if the Department of Labor certifies to the USCIS that the place of employment to which a Canadian or Mexican national is destined is the subject of a strike or other labor dispute involving a work stoppage, and the inspecting officer believes that the temporary entry of the alien may affect adversely either the settlement of such labor dispute or the employment of a person involved in the dispute, then the applicant for admission may be refused or a TN petition may be denied.
Elimination of annual numerical cap on new Mexican TN admissions:
Originally, NAFTA established an annual numerical cap on Mexican TN admissions. Specifically, only 5,500 Mexican TN were to be admitted each year, though the TN foreign national’s family members in TD status were not counted against the limitation.
Family members of TN aliens:
The family members (spouse and unmarried children under 21) of the principal alien are classified in the TD category. They cannot engage in employment unless they are independently qualified. Family members can undertake courses of study in the United States while remaining in TD status.
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