The 1993 North American Free Trade Agreement (NAFTA) contains immigration provisions relating to various nonimmigrant visas categories for Canadians and Mexicans. This article will focus on the TN-1 (Trade NAFTA Professional) for Canadians.
The TN-1 visa is the functional equivalent of the H-1B visa for other foreign professionals with a few significant advantages. The TN-1 visa, although issued for only one year at a time, has no definite cap on the number of renewals. No forms are required to apply for the visa. It can be obtained in person at the US-Canadian border. No Labor Condition Application (LCA) is required prior to application. Approval of the application is immediate.
REQUIREMENTS FOR TN-1 STATUS
- The Applicant must be a Canadian citizen.
- The business activity and the Applicant must qualify under Schedule 2 of NAFTA
- The Applicant must possess any required licenses to practice the profession in the state of proposed employment.
- The Applicant must provide documentation of remuneration arrangements with the U.S. employer.
- The U.S. employment must be temporary in nature.
- There must be no strike or lockout from a labor dispute at the place of business of the U.S. employer where the TN-1 employee will be employed.
The TN-1 category is available only to Canadian citizens. Qualified Canadian landed immigrants must apply for the H-1B visa. The Applicant must present a Canadian passport or birth certificate to prove the requirement.
Qualifying under Schedule 2 of NAFTA
Generally, the Applicant must fit within one of the scheduled professions listed in Appendix 1603.D.1 of NAFTA. To see a list of the scheduled professions, click here. Like the H-1B category, the TN-1 category generally requires that the Applicant have a baccalaureate (bachelor’s) degree in the listed profession. Unlike the H-1B category, however, no allowance is made for equivalent work experience unless otherwise noted in the list. The degree must be recognizable as one required for practice in the Applicant’s profession and of the necessary level to qualify the Applicant for the U.S. employment. In some cases, both a bachelor’s degree and a level of experience in the field are required. Evidence of the Applicant’s qualifications can be in the form of university or college transcripts indicating the appropriate degree, diplomas, degrees, licenses and/or membership in professional organizations.
With respect to the employment, the nature of the work to be performed must be professional in nature. The employer may be either a U.S. entity or individual, but cannot be the Applicant himself. The U.S. employer must fully detail the work to be done in a letter. TN-1 status is granted for one employer only. Multiple employers require separate TN-1 applications.
Generally, where a license is required in the U.S. state in which the employment is located, the Applicant must provide proof that he has obtained such a license. In certain professions, members of the profession do not require a license provided that they will work under the supervision of licensed personnel. In the case of professions that customarily permit this arrangement, the INS will approve an unlicensed Applicant. Evidence of licensure would be presentation of a valid professional license from the state of intended employment. In the event that Applicant is unlicensed, the employer must explain in the employment letter why the Applicant does not require a license to be employed in the profession in that particular state.
A letter from the U.S. employer stating the amount of remuneration to be paid to the Applicant should be sufficient.
Temporary Nature of Employment
Unlike, H-1B and L-1 professionals, the TN-1 professional may not have dual intent. Dual intent is a doctrine that allows an Applicant to have the intent to depart the U.S. at the conclusion of his non-immigrant visa and, at the same time, the intent to seek permanent residency in the U.S. based on that visa. At the time that the TN-1 application is made, the Applicant must have the intent to depart the U.S. at the conclusion of his employment. This does not, however, preclude the Applicant’s later applying for permanent residency based upon the TN-1 employment.