With the H-1B application process becoming too long and overly scrutinized, there’s an alternative to continue employing qualified foreign workers with minimal or no complications. Behold, the TN visa!
Established in 1994 through the North American Free Trade Agreement (NAFTA), this employment-based visa is only available for qualified Mexican and Canadian professionals and is valid for up to 3 years at a time. Additionally, there is no annual CAP or filing fees, no predetermined wage, and it is processed abroad upon submitting the TN application packet. There are also TD visas available for the applicant’s dependents. NAFTA Appendix 1603.D.1 lists all qualified occupations for this employment-based visa, including the occupations and the education and/or experience requirements the applicant must possess to qualify.
The application process is simple. Evidence is required of the petitioner’s legitimate job offer as per NAFTA Appendix 1603.D.1, and the beneficiary’s citizenship and education credentials.
- Mexican nationals must obtain a DS-160 consulate appointment to submit finalized packet;
- Canadian nationals go directly to the Port of Entry.
Unlike other visa applications, the TN application is not submitted to USCIS. The Officer at the Consulate, or the Port of Entry, reviews the TN packet and issues the visa.
Lawful Permanent Residency (Green Card) Option
If a company wants to sponsor the TN foreign worker, there is also a favorable option for lawful permanent residency for both Mexican and Canadian nationals. Although a TN visa does not have dual intent, in certain cases, one can file for lawful permanent residency in the United States.
The process is similar to most employment-based Green Card applications; a TN visa holder, however, can file the I-140 (Immigrant Petition for Alien Worker) and I-485 (Application to Register Permanent Residence or Adjust Status) concurrently.
The first stage is PERM, which takes roughly 7-8 months to get certified by the Department of Labor from the time of case initiation. Following PERM certification is the I-140 and I-485 stage, in which the applicant concurrently applies for an immigrant petition (I-140) and the Adjustment of Status (I-485). If there is no backlog, the I-140 immigrant petition can be processed in less than a month if filed through premium processing. By filing the I-485, an applicant is provided lawful status to remain in the country and has the ability to file for a valid travel document known as advance parole and employment authorization document, or EAD.
The Department of State controls the number of visas given per year, per country, and per category. If there are more filers than there are visas available, this creates what is called a retrogression. According to the Department of State’s monthly National Visa Bulletin for the month of November, 2019, the visa numbers are “current” for employment-based green card applications for Mexicans or Canadians (no backlog).
With growing scrutiny over the H-1B visa along with the Green Card retrogression, a company may want to consider the TN visa as an alternative when scouting for qualified foreign workers to help grow their business.
Please contact your local Chugh, LLP office to get in touch with our legal team who can help you obtain a TN visa or answer any immigration queries.