TN status


TN status or TN visa is a special non-immigrant classification in the United States that offers expedited work authorization to a citizen of Canada or a national of Mexico, created as a result of provisions of the North American Free Trade Agreement that mandate simplified entry and employment permission for certain professionals from each of the three NAFTA member states in the other member states.
A Canadian citizen or Mexican national with a job offer in certain defined professions and who meets the minimal education requirements for each defined profession can work in the United States, for up to three years. The permit potentially may be renewed indefinitely.
Canada's corresponding NAFTA work permit for US citizens and Mexican nationals is sometimes unofficially also referred to as a TN status or TN visa, although this name is technically only a creation of US law.
It bears a similarity, in some ways, to the US H-1B visa, but also has many unique features.

History

NAFTA negotiation and ratification

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. The leaders of the three nations signed the agreement in their respective capitals on December 17, 1992.
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.

United States federal law

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.
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.
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:

United States federal regulations

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 ".
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".
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.

Description

The visa category "Professionals Under the North American Free Trade Agreement", also known as a TN visa, is available only to citizens of Canada and Mexico, under the terms of the NAFTA. Starting in 1989 and continuing through 1993, qualifying individuals practicing one of the professions identified in the Canada–United States Free Trade Agreement were able to obtain TC status for legal work in the United States and Canada, creating freedom of labor movement. In 1994, TN status became effective through the North American Free Trade Agreement, which superseded CUSFTA.

Qualifications

A person may be eligible for TN status, if:
Once TN status is granted, it is valid for up to three years, 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.

Renewal

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.
Renewal is possible, in theory, indefinitely, but the TN status is not a substitute for permanent residency, 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.

Dependents

The spouse and dependent children under the age of 21 of a TN professional may apply for TD status. TD status can't be granted for longer than the period of time granted to the principal TN professional holder.
TD status does not allow them to work, although they are permitted to attend school. 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.

Canadian citizens

For Canadians, TN status does not involve a visa. Canadian professionals are admitted into the United States in TN-1 status at the border. Canadian citizens are not required to obtain a visa, but instead receive TN status with U.S. Customs and Border Protection at their port of entry. It must be noted that the TN status will only be granted if the period of stay is temporary. There is no appeal recourse if one is refused TN status.
Canadian citizenship for TN status purposes may be by descent or naturalization. Those with qualifications from sources outside Canada or the U.S. must prove equivalency to the U.S. requirements.
Canadians have two alternative procedures to apply for TN status. One by going directly to their port of entry and the other one by mailing their application to the designated processing office prior to their intended trip into the United States ; Canadians already in the US could do the same, without having to leave.

Directly to a port of entry

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

Applying with the USCIS

Alternatively, a prospective TN employer can apply for a change of visa status to TN on the person's behalf. The procedure for doing this is by submitting Form I-129 petition with a US$460 fee to the appropriate 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:
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.

Domestic partner/cohabitating partners

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.

Mexican citizens in the United States

A Mexican citizen must first obtain a U.S. TN-2 visa at an American consulate. Once the TN visa stamp is in the Mexican citizen's passport, they may enter the U.S. with TN status in a similar manner to a Canadian citizen. In fiscal years 2007 through 2009, between 4,000 and 5,000 TN visas were issued by U.S. consulates each year.
Prior to 2004, Mexicans were subject to an annual quota and to procedures similar to an H-1B visa.

Extension options

Renewal/extension of TN status can be done either by mail or by duplication of the original process.
TN holders are not required to leave the U.S. as soon as the TN status expires or the job is terminated; there is a formal grace period of 10 days at end of authorization to "depart the United States or take other actions to extend, change, or otherwise maintain lawful status" and a grace period of up to 60 consecutive days during each authorized validity period for certain high-skilled nonimmigrant workers when their employment ends before the end of their authorized validity period, so they may more readily pursue new employment and an extension of their nonimmigrant status. The individual is legally allowed to remain in the USA to look for another job for 60 days.https://www.uscis.gov/archive/archive-news/uscis-publishes-final-rule-certain-employment-based-immigrant-and-nonimmigrant-visa-programs

Income tax requirements

Canadian TN status workers are responsible for US Medicare, State, Federal and Social Security taxes in the US. US TN status workers in Canada are also subject to corresponding income tax liabilities and end-of-year filing of tax returns in Canada. In general, there will be income tax liabilities in accordance to where the employee works regardless of where legal or physical residence is maintained during employment. This is much like US citizens who live in one state but work in another who are then subject to state income and other taxes in the state in which they work. If their legal residence is still in their home country, workers may also be required to file a return in their home country. Based on income tax treaties, credit is normally available in the home country for income and other payroll taxes paid in the foreign country. Bilateral treaties exist to allow workers to regain benefits. For example, after a minimum of 1.5 years of work in the US, workers become eligible for a pro-rata Social Security benefit under what is known in the US as a Totalization agreement. After more than 10 years of work in the US, the regular Social Security benefit calculation minus the Windfall Elimination Provision will be applied. Therefore, the worker may receive 3 cheques, one each from the Canada Pension Plan, Old Age Security and US Social Security.

Comparison to H-1B visa

TN status has some similarities with the H-1B visa. TN status may be easier for some Canadians or Mexicans to obtain, as they are not subject to the annual cap for H-1B visas issued.
But the most important difference is that TN status does not include the doctrine of dual intent. Therefore, Canadians or Mexicans on TN status must be careful if they desire to ultimately pursue the green card. Either they should first switch to the H-1B visa before applying for the green card, or they must carefully time things to ensure they do not attempt to renew TN status after the green card application is formally pending.

Employer requirements

Employers do not need to maintain extensive documents and records on TN workers, unlike with H-1B employees. In the case of an investigation or audit by the Immigration Service or Labor Department, the employer must show that the worker is in valid status. An employer must complete the Form I-9 for employees in TN visa status, as with all other employees.

Recognized TN professionals

The following professions qualify for the TN visa. They are covered by Appendix 1603.D.1 of the North American Free Trade Agreement.