CANADIAN AND MEXICAN PROFESSIONALS UNDER NAFTA

General Information about TN Status

The 1994 North American Free Trade Agreement (NAFTA) facilitates travel to and employment in the United States ("US") of certain Canadian and Mexican workers. NAFTA created a new visa category "TN" for eligible Canadian and Mexican professionals workers and also affected terms of admission for Canadians admitted to the US under other nonimmigrant classifications.

TN employment must be in a NAFTA Schedule 2 profession (see below) and the TN employee must possess the credentials required. TN status allows unlimited multiple entries to the US for the period of services required by the US employer, up to a maximum of one year, extendible indefinitely as long as the temporary purpose of the employment continues.

There is no annual limit on TN-1 admissions from Canada or Mexico.

Self-Employment

TN: Members of Schedule 2 professions who are self-employed outside the US may pursue business relationships from outside the US (e.g. contracts for services) with US-based companies and obtain TN status to engage in these prearranged activities in the US.

B-1: NAFTA does not allow self-employed Canadian or Mexican business visitors to establish US business offices to service US clients. Prearranged contracts for services may not be carried out in B status.

Admissions Pursuant to NAFTA

Canadians may apply for TN-1 classification directly at Class A US ports of entry. Documentation must include proof of Schedule 2 credentials, and documentation from US employer of nature and duration of professional employment and salary/wages in the US. Canadian citizens need not obtain TN-1 consular visas.

• Mexicans (TN-2) may now apply for TN-2 classification without the need for a petition being filed with USCIS; however, they must obtain consular visas.
• Documentation must include proof of Mexican citizenship, applicable filing fee, proof of the purpose for entry and proof of participation in a permitted NAFTA professional activity.
• Management consultants are considered to be Schedule 2 professionals under NAFTA, and therefore eligible for TN classification. However, their services are expected to be of a temporary, periodic, or fixed consulting nature rather than performed as full-time employment.
• NAFTA extended acceptable B-1 activities, including servicing post-sale agreements and warranties (see NAFTA Schedule 1), to any professional category listed on Schedule 2. However, general visitor classification restrictions continue to apply.
• E-1 & E-2 (treaty traders and investor) visas may be denied to Canadian or Mexican citizens whose entry into the US may adversely affect settlement of a labor dispute certified by the Department of Labor or employment of a person involved in a certified strike or work stoppage.
• L-1 classification for Canadian citizen intracompany transferees may be adjudicated directly at Class A ports of entry to the US. Mexican citizens must obtain L visas prior to entry into the US, once approved as beneficiaries of petitions for L-1a or L-1b classification. L visas may be denied to any Canadian or Mexican citizen whose entry into the US may adversely affect settlement of a US Department of Labor-certified strike or work stoppage.

INSPASS Program

Canadian citizens who enter the US more than twice per year in B, E, L or TN status are eligible for automated border inspections via the INSPASS program. As of June 1999, applications may be made on Form I-833 at Los Angeles, Miami, Newark, New York JFK, San Francisco, Toronto, Vancouver, and Washington Dulles Airports. INSPASS cards are free of charge and valid for one year. Mexican citizens are not eligible for the INSPASS program.

Family Members

Family members of both Canadian and Mexican professionals enter the US in TD status. They can be included on the application of the TN principal and be admitted for the same duration of stay. TD admissions do not require separate filing fees. TD nonimmigrants may be students in the US, but are not authorized for employment under this classification.

Canadian dependents' eligibility may be adjudicated at a US port of entry. Although Mexican family members are automatically included in TN petitions filed at the Vermont Service Center, they must file separate application for TD visas at a U.S. consulate.

Change of Status to TN

Canadian citizens present in the US in B, L, H, or other nonimmigrant status may change to TN status in two ways:

Mexican citizens present in the US in B, L, H or other nonimmigrant status may change to TN-2 status only by applying to the Vermont Service Center in the same manner as Canadian applicants for change to TN-1 status under #1 above, except that TN-2 principals and TD dependents must include copies of their Forms I-94.

Change of TN Employment

TN-1 Canadians may change employers or add an employer by filing Form I-129 with the Vermont Service Center or by departing the U.S. and presenting revised documentation, relating to the new employment, at the port of re-entry.

As of December 31, 2003, TN-2 Mexicans may also change or add employers by filing Form I-129 with the Vermont Service Center or by departing the U.S. and presenting revised documentation, relating to the new employment, at the U.S. Consulate in Mexico.

Extension of TN Stay

General: An unlimited number of extensions of stay may be granted to TN-1 or TN-2 nonimmigrants in one-year increments. TD dependents derive permission to extend their stays from the TN principals.

Canadians who wish to apply for extensions while remaining in the US may file Form I-129 plus the applicable filing fee for the TN principal and I-539 plus applicable filing fee for family members (inclusive) with the Vermont Service Center. Alternatively, TN principals and family members can depart the U.S. and apply for readmission in TN and TD status at a port of re-entry. TD family members traveling without TN principals may extend their stays by applying at ports of re-entry with copies of the principal's Form I-797.

Mexicans may apply for extensions of TN-2 status only by filing Form I-129 with the applicable filing fee and copies of the I-797 approval notice and the Form I-94. Applications on Form I-539 must be filed concurrently by dependent family members with appropriate filing fee.

Adjustment of Status from TN

Unlike H-1B, for example, TN is not a dual intent classification. This means that a TN nonimmigrant must maintain the intent to depart the U.S. at the conclusion of the approved TN employment and not to intend to establish permanent U.S. residence. Accordingly, TN nonimmigrants generally are not permitted to be intending beneficiaries of pending petitions for permanent residence while employed under a TN (or derivative dependent) classification and will not be approved for adjustment of status from TN (or TD) to permanent resident. Of course, eligible Canadians or Mexicans are not prohibited from changing from TN to another nonimmigrant classification that permits dual intent and subsequently petitioning for permanent residence and adjustment under the new classification.

TN professions (NAFTA Schedule 2)

• Accountant—baccalaureate degree, licenciatura degree, C.P.A., C.A., C.G.A., or C.MA.
• Actuary—satisfaction of the necessary requirements to be recognized as an actuary by a professional, actuarial association or society
• Architect—baccalaureate degree, licenciatura degree, or state/provincial license
• Computer Systems Analyst—baccalaureate or licenciatura degree; or post- secondary diploma Or certificate and three years’ experience
• Disaster Relief Insurance Claims Adjuster—baccalaureate or licenciatura degree and successful completion of training in the appropriate areas of in­surance adjustment pertaining to disaster relief claims; or three years’ expe­rience in the field of claims adjustment and successful completion of training in the appropriate areas of insurance adjustment pertaining to disaster relief claims
• Economist—baccalaureate degree or licenciatura degree
• Engineer—baccalaureate degree, licenciatura degree, or state/provincial license
• Forester—baccalaureate degree, licenciatura degree, or state/provincial li­cense
• Graphic Designer—baccalaureate or licenciatura degree; or post-secondary diploma or certificate and three years’ experience
• Hotel Manager—baccalaureate or licenciatura degree in hotel management; or post-secondary diploma, or certificate and three years’ experience
• Industrial Designer—baccalaureate or licenciatura degree; or post-second­ary diploma or certificate and three years’ experience
• Interior Designer—baccalaureate or licenciatura degree; or post-secondary diploma or certificate and three years’ experience
• Land Surveyor—baccalaureate degree, licenciatura degree, or state/ provincial/federal license
• Landscape Architect—baccalaureate or licenciatura degree
• Lawyer (including Notary in the province of Quebec)—L.L.B., J.D., L.L.M., B.C.L., licenciatura degree (five years), or membership in a state/provincial bar
• Librarian—M.L.S. or B.L.S. (for which another baccalaureate or licenciatura degree was a prerequisite)
• Management Consultant—baccalaureate degree, licenciatura degree, or five years’ experience in consulting or related field
• Mathematician (including Statistician)—baccalaureate or licenciatura degree
• Range Manager/Range Conservationist—baccalaureate or licenciatura degree
• Research Assistant (working in a post-secondary educational institution)— baccalaureate or licenciatura degree
• Scientific Technician/Technologist
  • must work in direct support of professionals in the following disciplines: chemistry, engineering, geology, geophysics, meteorology, physics, astronomy, agricultural sciences, biology or forestry.
  • must possess theoretical knowledge of the discipline.
  • must possess ability to solve practical problems in the discipline, or the ability to apply principles of the discipline to basic or applied research.
• Social Worker—baccalaureate or licenciatura degree
• Sylviculturist (including Forestry Specialist)—baccalaureate or licenciatura degree
• Technical Publications Writer—baccalaureate or licenciatura degree; or post-secondary diploma or certificate and three years experience
• Urban Planner (including Geographer)—baccalaureate or licenciatura degree
• Vocational Counselor—baccalaureate or licenciatura degree
• MedicallAllied Professional
  
  Dentist —D.D.S., D.M.D., Doctor en Odontologia, Doctor en Cirugia Dental, or state/provincial license
  
  Dietitian—baccalaureate degree, licenciatura degree, or state/provincial license
  
  Medical Laboratory Technologist (Canada)/Medical Technologist (Mexico)— baccalaureate or licenciatura degree; or post—secondary diploma or certifi­cate and three years of experience
  • must be seeking entry to perform chemical, biological, hematological, immunologic, microscopic, and bacteriological tests, procedures, experiments, and analyses in laboratories for diagnosis, treatment, or preven­tion of disease.

Nutritionist—baccalaureate or licenciatura degree

Occupational Therapist—baccalaureate degree, licenciatura degree, or state/ provincial license

Pharmacist—baccalaureate degree, licenciatura degree, or state/provincial license

Physician (teaching and/or research only)—M.D., Doctor en Medicina, or state/provincial license

Physio/Physical Therapist—baccalaureate degree, licenciatura degree, or state/provincial license

Psychologist—licenciatura degree or state/provincial license

Recreational Therapist—baccalaureate or licenciatura degree

Registered Nurse—licenciatura degree or state/provincial license

Veterinarian—D V M, D M V, Doctor en Veterinana, or state/provincial license

• Scientist

Agriculturist (including Agronomist) —baccalaureate or licenciatura degree

Animal Breeder—baccalaureate or licenciatura degree

Animal Scientist—baccalaureate or licenciatura degree

Apiculturist—baccalaureate or licenciatura degree

Astronomer—baccalaureate or licenciatura degree

Biochemist—baccalaureate or licenciatura degree

Biologist—baccalaureate or licenciatura degree

Chemist—baccalaureate or licenciatura degree

Dairy Scientist—baccalaureate or licenciatura degree

Entomologist—baccalaureate or licenciatura degree

Epidemiologist—baccalaureate or licenciatura degree

Geneticist—baccalaureate or licenciatura degree

Geochemist—baccalaureate or licenciatura degree

Geologist—baccalaureate or licenciatura degree

Geophysicist (including Oceanographer in Mexico)—baccalaureate or licenciatura degree

Horticultunst—baccalaureate or licenciatura degree

Meteorologist—baccalaureate or licenciatura degree

Pharmacologist—baccalaureate or licenciatura degree

Physicist (including Oceanographer in Canada)—laccalaureate or licencia­tura degree

Plant Breeder—baccalaureate or licenciatura degree

Plant Pathologist—baccalaureate or licenciatura degree

Poultry Scientist—baccalaureate or licenciatura degree

Soil Scientist—baccalaureate or licenciatura degree

Zoologist—baccalaureate or licenciatura degree

• Teacher

College—baccalaureate or licenciatura degree

Seminary—baccalaureate or licenciatura degree

University—baccalaureate or licenciatura degree