Should You Use the TN Visa as an Alternative to H-1B?

In 1994, the North American Free Trade Agreement created the TN visa category, a visa specifically designed for Canadian and Mexican professional workers who wish to come to the U.S. for employment. Although initially underused, the amount of TN admissions increased drastically when Congress expanded the validity period of TN visas from one year to three in 2008.[1],[2] As a result of this increase, the number of TN admissions has been almost twice the amount of H-1B admissions for the past few years. Last year alone, over 700,000 individuals were admitted in TN status compared to 473,015 in H-1B status.[3]

These figures appear to indicate that for U.S. employers seeking to hire Canadian or Mexican nationals, the TN visa is a great alternative to using the H-1B visa category. There are certainly numerous benefits to using the TN visa; it has a much faster processing time than other visa categories and requires significantly lower application fees. Further, unlike other employer-sponsored visas, there is no annual limitation on the number of TN visas available, and the sponsoring employer need not prove there are no American workers available for the position.

So what’s the catch? Unlike the H-1B visa category, a TN visa holder must maintain nonimmigrant intent; otherwise, they may be found inadmissible.[4] This means that upon entry to the United States, the TN applicant must satisfy the inspecting officer that the proposed stay is temporary and has a finite end.[5] As a result, anyone coming into the U.S. on a TN visa cannot intend to establish permanent residence in the United States.[6] According to the U.S. Department of State, the circumstances surrounding the TN applicant’s request for admission to the U.S. should indicate that the temporary work assignment in the United States will “end predictably” and that they plan on leaving the U.S. when their employment has ended.[7]

This does not necessarily mean than a TN visa holder can never become a U.S. permanent resident. According to State Department guidance, an intent to immigrate in the future which is in no way connected to the proposed immediate trip need not in itself result in a finding that the immediate trip is not temporary.[8] An extended stay, even in terms of years, may be temporary, as long as there is no immediate intent to immigrate.[9] Unfortunately, because Customs and Border Patrol is a part of U.S. Department of Homeland Security, it is not bound by State Department rules; as a result, Canadian and Mexican TN applicants might still be turned away for possessing immigrant intent.

For professional workers that possess Canadian and Mexican citizenship, the TN visa still comes out ahead as a better way to enter the U.S. despite these issues of immigrant intent. With its faster processing times, low application fees, and unlimited duration, the benefits of the TN visa category outweigh the risks of being rejected at the border for possessing immigrant intent. If employers choose to go the TN visa route, it is important that the visa applicant state that they will leave the US at the end of TN status in order to avoid being turned away during inspection.

[1] 8 C.F.R. §214.6

[2] “Table 3. Nonimmigrant Admissions (I-94 only) by Class of Admission: Fiscal Years 2008 to 2010” Randall Monger and Megan Mathews, August 2011. Department of Homeland Security Annual Flow Report on Nonimmigrant Admissions to the United States: 2010, available here.

[3] “Table 1. Nonimmigrant Admissions (I-94 only) by Class of Admission: Fiscal Years 2010 to 2012” Randall Monger, August 2013. Department of Homeland Security Annual Flow Report on Nonimmigrant Admissions to the United States: 2012, available here.

[4] 8 C.F.R. § 214.6 (b).

[5] Id.

[6] Id.

[7] 9 FAM 41.59 Note 5, available here.

[8] Id.

[9] Id.

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