The TN visa category: An oasis in the desert of dried up international talent pools

May 15, 2015
Jacob T. Muklewicz
InsideCounsel

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 approximately 233,000 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 ocean quickly dries up, employers unfortunately find themselves stranded in a desert wherein they cannot fully recruit international talent.

However, many U.S. employers unfortunately do not utilize the TN visa category, which is an oasis in the desert of dried up international talent pools. 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 internal 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 at 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. If the Canadian or Mexican citizen is already lawfully present in the U.S., he or she may submit to U.S. Citizenship and Immigration Services an I-129 petition requesting a change of status to TN professional.

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 over the H-1B visa. First, there is no annual cap, thus allowing U.S. employers to file TN petitions at any time throughout the year. Second, the TN visa category does not require internal postings for employees or a certified Labor Condition Application (LCA) from the Department of Labor (DOL). Third, because TN visa applications do not require LCAs, employers are not required to calculate the DOL’s prevailing wage levels. 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 where they may find an oasis of skilled professionals.