News

Published 8.21.2019

Many people are familiar with some of the common work visas we have on the books, such as H-1B for skilled workers, H-2B for temporary or seasonal non-agricultural workers, or the H-2A seasonal agricultural visa, among others.  But many employers can benefit from a lesser-used classification available pursuant to the North American Free Trade Agreement (NAFTA).  

This Treaty National visa, commonly known as the TN visa, provides a more streamlined application process for dozens of skilled or technical occupations, does not have a statutory limit on how many times it can be renewed, and it does not have a cap on how many visas can be issued per year, or involve a lottery.  The TN visa also provides much needed relief to some industries for which the traditional work visas such as H-1B, H-2B or H-2A do not apply.  

What is the TN visa?

The TN visa was made available for citizens of Mexico and Canada, the two other countries that are parties to the NAFTA agreement.  This visa allows eligible applicants to be admitted to the U.S. for up to three years at a time, in order to work in a prearranged job.  The job can be either full-time or part time, and it must be in a profession listed under the regulations.

What type of jobs qualify for TN visa?

The types of jobs eligible for TNs are listed in the federal regulations at 8 C.F.R. 216.6(c), pursuant to Appendix 603.D.1 to Annex 1603 of the NAFTA agreement.  There are over 60 TN-eligible professions, as follows:

What qualifications must the employee have?

The qualifications needed by the employee will depend on the profession.  Most TN professions require a baccalaureate or licenciatura degree in a field related to the profession.  Mexican nationals will also require the titulo and cedula.  

However, there are several occupations from the NAFTA appendix that can be applied across several industries and for which employees may qualify with alternative qualifications.  Some of these professions for which a baccalaureate is not required are:  

• Computer System Analyst 
• Disaster relief insurance claims adjuster 
• Graphic Designer 
• Hotel Manager
• Industrial Designer 
• Interior Designer 
• Management Consultant 
• Scientific Technician/Technologist in agricultural sciences, astronomy, biology, chemistry, engineering, forestry, geology, geophysics, meteorology, or physics
• Technical Publications Writer 

What is the TN visa application process?

The application process will depend on several factors.  Mexican nationals are required to apply for a TN visa at a U.S. Consulate in Mexico.  By contrast, Canadian citizens do not have this requirement, and they can present their application directly to the U.S. Customs and Border Protection (CBP) officer at the port of entry, at the time they travel to the U.S.

If the employee is already in the U.S., the employer can file an I-129 Petition for Nonimmigrant Worker with U.S. Citizenship and Immigration Services (USCIS), in order to change the employee’s status to TN, or extend the status if the employee already has TN.  But even when the employee is in the U.S., in many cases it may be more advantageous for the employee to depart and apply at the Consulate (if Mexican), or at CBP (if Canadian).  This is generally a strategic decision to be made on a case-by-case basis, depending on the timing of the company’s need for the employee’s services, the employee’s need or ability to travel abroad, backlogs in processing times or delays in Consulate appointment availability at the time of need, etc.

Whichever process we follow, under current rules, the TN process is still more cost and time-efficient than most of the other work visa classifications.  For instance, the visas in the H category (H-1B, H-2B, etc.) all require an application with the U.S. Department of Labor (DOL) as a first step in the process, before employers can even submit the actual immigration petition to USCIS.  The DOL process can take anywhere from a week to a couple of months.  Also, it is entirely possible for DOL to approve or certify the first step in the application process, and for USCIS to deny the second step.  The TN visa does not require DOL processing, which makes the process faster and also eliminates the risk of inconsistent results between two separate government agencies.  Also, because the TN process does not require an application or petition with USCIS and can be processed directly through the Consulate or CBP (except for extensions or change of status cases), employers do not have to pay certain government filing fees otherwise associated with H-type visas.  

Why use the TN visa? Why not use H-1B, H-2B, H-2A, or other common types of work visas? 

The common work visa types do not always work for all industries or, if they do, there may be a quota on how many can be issued each year.  

For instance, the dairy industry is one of the most disadvantaged when it comes to hiring foreign workers.   The typical work visas currently on the books do not easily apply to this type of work.  The most commonly used visa for agriculture is H-2A, but one of the primary requirements for this work visa is that the work be seasonal or the need temporary.  Because dairy farms are generally a year-round business, the DOL and USCIS generally take the position that dairy jobs are not seasonal or temporary, so they routinely deny H-2A classifications in these cases.  There is no dispute that the labor shortage is very high in this industry and legislation to extend the H-2A program to dairy work has been proposed, but it did not become law.  Even if H-2A were available for the dairy industry, H-2As are generally used for low-skilled labor so they would not cover positions such as engineers (in any industry), animal breeders, animal scientists, veterinarians, agronomists, or dairy scientists, which are all skilled occupations.

The H-2B is another commonly used work visa that applies to non-agricultural work, but that, too, requires seasonal employment.  In addition, dairy farms are still agricultural in nature, so a non-agricultural visa would likely not work even in the absence of the seasonal factor.  The other problem with H-2B is that the law only provides for 66,000 per year, while the demand in recent years has been much higher especially for the summer months when golf courses, hotel resorts, and amusement parks (among others) take up a large portion of the allotted visas.  While Congress has passed emergency measures several times to supplement these visas, any such measures were only applicable to the year in which they passed, they still did not meet the demand, and the H-2B submissions were run through a lottery.   

The H-1B is another visa that employers in all industries often ask us about.  The H-1B is for skilled labor, where jobs require at least a bachelor degree in a specialty occupation as a common industry standard, or where the particular job at hand is so unique or complex that it can only be performed by someone with a bachelor degree in a particular field.  There are two primary reasons why the H-1Bs don’t work for many employers, whether in the dairy industry or not.  The first is the bachelor degree requirement that does not apply to many jobs for which we have labor shortages.  The second problem is that the law only provides 65,000 H-1Bs per year for college graduates, and an additional 20,000 for graduates of Master’s or Ph.D. programs from accredited U.S. universities.  USCIS receives an average of 200,000 petitions from employers each year, seeking initial H-1B status (not counting renewals, extensions, job transfers, or certain non-profit or research institutions who may be exempt from the quota).  So even for the jobs that do require a specialized bachelor degree (such as engineers, animal breeders, animal scientists, agronomists, dairy scientists, etc.), employers must go through the H-1B lottery, then wait another several weeks or months to find out if USCIS approves their petition before they can find out if they can fill their vacancies.  

Therefore, if you have a potential employee who is from Canada or Mexico, for a job that is listed in the NAFTA appendix, then a TN visa may be an option.  As with most immigration matters in the U.S., there is no one-size-fit-all strategy for TNs.  Therefore, our office will analyze the job and the employee’s qualifications and advise as to the appropriate course of action, help prepare the application package and discuss application strategies on a case-by-case basis.  

If you have any questions regarding the TN visa or any other immigration-related matters, please do not hesitate to contact Attorney Raluca (Luca) Vais-Ottosen at rvo@dewittllp.com or 608-252-9291.