The TN Visa Category – A Great Alternative to the H-1B Visa

October 2014
Jacob T. Muklewicz
Utah Employment Law Letter

Employers in the U.S. looking for skilled workers are often frustrated by the artificial quotas that Congress has placed on the H-1B visa category. During the first week of April, when U.S. Citizenship and Immigration Services (USCIS) accepted new H-1B petitions subject to the annual cap, USCIS received over 172,000 petitions for only 85,000 available H-1B visas (65,000 in the general H-1B cap plus 20,000 in the Master’s cap). Because the H-1B cap is quickly exhausted, many employers feel that recruiting skilled, foreign workers is pointless.

However, many U.S. employers are not aware of the TN visa category, which is a great alternative to the H-1B visa. This article briefly describes the TN visa category, including the eligibility criteria and procedures for obtaining TN admission, as well as identifies the TN visa category’s advantages.

The TN visa category is available for Canadian and Mexican citizens who will work for a U.S. employer (self-employment is not allowed) in a profession listed in Appendix 1603.D.1 of Annex 1603 of the North American Free Trade Agreement (NAFTA). To qualify for TN visa admission, a Canadian or Mexican citizen must possess the academic or professional credentials specified in NAFTA, Appendix 1603.D.1 of Annex 1603 for the profession in which he or she will work in the U.S.

NAFTA’s list of professions contains occupations in several areas, including but not limited to engineering, computer systems, graphic design, architecture, economics, law, and medicine. The professions listed in NAFTA are generic and may not reflect an employer’s specific job title. Therefore, it is critical to evaluate a position’s job duties in order to determine whether or not the position qualifies as a profession within NAFTA.

The procedure for obtaining TN visa status depends on the foreign worker’s country of citizenship. If the worker is from Canada, he or she does not have to obtain a travel visa but may apply for TN admission at either a pre-flight U.S. immigration inspection office at designated airports or a point of entry along the U.S.-Canadian border. If the worker is from Mexico, he or she must apply for a TN travel visa at a U.S. Embassy or Consulate before applying for TN admission to the U.S.

Although the TN visa category is limited to only Canadian and Mexican citizens who will work for U.S. employers in professions listed in NAFTA, the category has several advantages of the H-1B visa. First, there is no annual quota, thus allowing U.S. employers to file TN applications at any time throughout the year.  Also, because there is no cap or quota, there is no risk that there will not be sufficient TN visas available. Second, the TN visa category does not require internal postings for employees or a certified Labor Condition Application (“LCA”) from the Department of Labor. Third, because TN visa applications do not need LCAs, employers are not required to pay TN workers at least the prevailing wage levels for H-1B workers. Instead, the minimum wage or salary requirements are those required by federal and state laws, as well as collective bargaining agreements, if applicable. Fourth, the government filing fees for TN visa applications are significantly less than the costs and fees for H-1B petitions. Finally, employers are not required to pay for the fees and costs associated with TN visa applications as they are with H-1B petitions. Instead, employers may, if they wish, pass to the foreign national some or all of the costs for obtaining TN visa status.

Employers that are apprehensive about recruiting international students at U.S. universities and colleges because of the H-1B cap may find skilled professionals in Canadian and Mexican post-secondary schools. Because employers do not have to spend as much time and money for TN visa applications as with H-1B petitions, they may use the saved time and money for recruiting trips to Canadian and Mexican universities and colleges.