Case Study: A Breakdown of the TN Visa & Everything Employers Need to Know

by | May 3, 2022

The US employment-based visa system allows foreign workers to enter the United States, for employment purposes, on a temporary or permanent basis, depending on the type of visa.  These visas have different requirements, length of time, and some of them are also based on the nationality and credentials of the professional employee. In times of major disruption in America’s labor force, employers can benefit from contracting foreign workers using certain employment -based visas that are less difficult to obtain, like the TN visas for citizens of Mexico and Canada.  

What is a TN visa?

The TN nonimmigrant visa classification permits qualified Canadian and Mexican citizens to seek temporary entry into the United States to engage in business activities at a professional level. This special visa category was created by the North American Free Trade Agreement (NAFTA) to facilitate special economic and trade relationships for the United States, Canada and Mexico.

What are the Benefits of applying for a TN visa?

Unlike H-1B visa, TN visa does not require a Labor Condition Application. Employer and employee can set their own terms of employment. This visa can be obtained in a very short period of time, especially for Canadians, who can apply at the border. There is no limit on the number of times TN status can be renewed. 

A TN employee needs an offer of employment. However, the employer does not have the legal obligation, like in the H-1B visa, to pay for fees, except for the Form I-129 petition fee and premium processing fee, if so desired.   Finally, TN visa is not subject to an annual cap.  This means that there is no pre-set number of visas per year and employer can file petitions at any time. 

What are the requirements for TN visa?

TN visa applicants must meet certain requirements:

  • Applicants must be citizens of Canada or Mexico.
  • Their occupation must be on the NAFTA list.
  • They must have a full time or part time job offer from an employer in the US. TN employee can also work part time for two different employers. 
  • The job offer should be specified to require a NAFTA professional.  Professions not listed are not subject to TN visa eligibility. 
  • The applicant must meet the educational and experience requirements.
  • The applicant must demonstrate his/her intent to return to his/her country after the visa expires.

What professions are listed for TN visa?

Pursuant to the NAFTA, an applicant seeking admission under this section shall demonstrate business activity at a professional level in one of the professions set forth in Appendix 1603.D.1 to Annex 1603. The professions in Appendix 1603.D.1 and the minimum requirements for qualification for each are as follows, and are divided into four categories: 1) Professionals, 2) Medical and Health Care Professionals, 3)Scientists and 4) Teachers. 

Professionals

  • Accountant
  • Architect
  • Computer Systems Analyst
  • Economist
  • Engineer
  • Forester
  • Graphic Designer
  • Hotel Manager
  • Industrial Designer
  • Interior Designer
  • Land Surveyor
  • Landscape Architect
  • Lawyer
  • Librarian
  • Management Consultant
  • Mathematician
  • Range Manager
  • Research Assistant
  • Scientific Technician
  • Social Worker
  • Technical Publications Writer
  • Urban Planner
  • Vocational Counselor

Medical and Health Care Professionals

  • Dentist
  • Dietitian
  • Medical Laboratory Technologist
  • Nutritionist
  • Occupational Therapist
  • Pharmacist
  • Physician
  • Physiotherapist
  • Psychologist
  • Recreational Therapist
  • Registered Nurse
  • Veterinarian

Scientist

  • Agriculturist
  • Animal Breeder/Scientist
  • Agriculturist
  • Astronomer
  • Biochemist
  • Biologist
  • Chemist
  • Dairy Scientist
  • Entomologist
  • Epidemiologist
  • Geneticist
  • Geochemist
  • Geologist
  • Geophysicist
  • Horticulturist
  • Meteorologist
  • Pharmacologist
  • Physicist
  • Plant Breeder
  • Poultry Scientist
  • Soil Scientist
  • Zoologist

Teachers

  • College Professor
  • Seminary Professor
  • University Professor

Health Care Professionals need certification.

Individuals who want to work in healthcare in the United States as Registered Nurses, Physical Therapists, Occupational Therapists, Medical Technologists, must meet the certification requirements. The certification is necessary to verify that the person has completed all training, degrees, has enough experience, and English proficiency required by the United States health care system. The TN visa occupations which require this certification are:

What is the TN visa application process?

If employee is a Canadian citizen, there are two options:

  1. Apply directly at a U.S. Customs and Border Protection (CBP) port of entry when entering the U.S. or
  2. The employer can submit the TN application along with Form I-129 to U.S. Citizenship and Immigration Services (USCIS) and then seek entry once approved at a U.S. port of entry

If the employee is a Mexican citizen, he/she will need to submit the paperwork to a U.S. embassy or consulate along with Form DS-160, attend an interview, receive a visa number, and then seek entry at a U.S. port of entry.

Other visa application strategies are available.  Please consult with an experience attorney

What are the necessary documents to apply for TN visa?

  • Necessary employer documents:  Job offer detailing, position, salary.
  • Necessary employee documents: Proof of citizenship either Canadian or Mexican. Original diplomas, certificates, transcripts. In certain situations, proof trainings, past employments experience, certifications may be useful.  

Job title does not have to match the NAFTA category exactly.

Applicant’s job title does not have to match the NAFTA category perfectly. The NAFTA professional categories are broad, and often without specific definitions. This means that a wide range of professional jobs in the United States can qualify for TN status, with the proper approach and corresponding application and within reason. 

  • Case Study 1: Tondini Law represented a citizen of Mexico in applying for a TN visa for a Graphic Designer position. This person had a post-secondary certificate, several years of experience in marketing and a cedula professional (a professional credential issued by the Public Education Secretariat [SEP]) under a special program. We argued that the years of experience in marketing are comparable to experience as graphic designer, provided examples, and letters of recommendation of past employers.  Case was approved.
  • Case study 2: Tondini Law represented a citizen of Mexico in applying for a TN visa for the position of Scientific Technician/Technologist in the area of engineering. We argued that the prospective employee had theoretical knowledge of engineering and the ability to solve practical problems in any of those disciplines, or the ability to apply principles of any of those disciplines to basic or applied research.  We also provided a company’s chart indicating that the applicant will be in direct support of a professional in the area of engineering. We obtained several letters of reference of prior employers with clear examples of how the applicant has theoretical knowledge, and ability to solve problems in the area of work.  Case was approved.
  • Case study 3: Tondini Law represented a citizen of Canada in applying for a Management Consultant position. Our client has several years of experience in sales as independent contractor, but no bachelor’s degree. He was hired by a US company to train sales representatives. We effectively argued that employee had more than five years’ experience in a field of specialty related to the consulting agreement (sales). We provided letters in support from prior jobs and detailed job description. Case was approved.  

Traveling abroad with a TN visa expired: Automatic Revalidation:

Citizens of Mexico currently in the U.S. under TN visa status may extend their TN visa status by filing form I-129. Mexican citizens who file an I-129 petition for an extension of their TN visa status will receive an I-797 approval notice with an I-94 card attached at the bottom. This document serves as evidence of the TN visa worker’s ability to reside in the U.S. and continue working for his/her employer. Work authorization may be extended by this procedure without going to the U.S. consulate for a new TN visa stamp. This work authorization also remains valid even after an individual’s TN visa stamp expires.

This visa extension does not by itself permit a citizen of Mexico to exit and then re-enter the U.S. Citizens of Mexico must possess a valid TN visa stamp in their passport in order to travel to the U.S. 

There is, however, one exception to the rule requiring citizens of Mexico to have a valid TN visa stamp in order to travel to the U.S. This exception is known as “visa revalidation” and allows an individual to return to the U.S. despite having an expired visa stamp. 

Requirements for automatic visa revalidation

  • Possesses an I-797 form with an I-94 card evidencing an unexpired period of TN status.
  • Has only traveled to either Canada or Mexico for a period not exceeding 30 days.
  • Has maintained and intends to resume his/her TN nonimmigrant status.
  • Is applying for readmission within the authorized period of his/her extension of TN status.
  • Did not apply for a new TN visa during his/her visit to Mexico or Canada.
  • Does not require a waiver as result of being subject to a ground of inadmissibility.
  • Has a valid passport.

If a TN visa worker abides by the conditions above, then he/she should be allowed to depart and return to the U.S. with his/her I-797 extension of status approval form despite having an expired TN visa stamp in his/her passport.

Tondini Law can help you. 

Immigrant and nonimmigrant visas represent a significant investment of both, time and money. To succeed and protect that investment, it is recommended to hire an expert to properly advise you and represent you. Attorney Silvina Tondini has extensive experience representing individuals and businesses in TN visa cases and other employment-based and family-based visas.For more details about the TN application process, or for questions concerning your individual case, contact Tondini Law and schedule a consultation.

Silvina Tondini, Esq.
Silvina Tondini is a bilingual, skilled, international advocate and a national speaker on Immigration Law with years of diversified experience providing counsel and directing individuals and business clients on business and immigration law matters.

Attorney Silvina Tondini can be reached at (760) 579-7389 or by email at info@tondinilaw.com

Disclaimer: This blog is for informational purposes only. If you have any questions, please contact our office.