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NAFTA

Employing Canadian and Mexican Professionals Under NAFTA

The United States, Canada, and Mexico have entered into a North American Free Trade Agreement (NAFTA), which provides for expedited admission of business persons of each country into the other country. NAFTA went into effect on January 1, 1994. NAFTA makes temporary employment in the U.S. easier for certain Canadian and Mexican workers. NAFTA created a new classification, “TN,” for eligible Canadian and Mexican professional workers and also affected terms of admission for Canadians admitted to the U.S. under other nonimmigrant classifications.

The immigration-related provisions of NAFTA cover four categories of business persons from Canada and Mexico seeking entry into the United States: (1) B-1 temporary business visitors; (2) TN professionals; (3) E traders and investors; and (4) L-1 intra-company transferees.

B-1 status under NAFTA

B-1 visitors under NAFTA may enter the U.S. to pursue activities usually provided for B-1 category (outlined in Foreign Affairs Manual and the INS Operations Instructions), and additional activities falling into 7 categories, such as: (1) research and design; (2) growth, manufacture, and production; (3) marketing; (4) sales; (5) distribution; (6) after-sales service; and (7) general service. Notwithstanding this provision the Canadian or Mexican business persons must not be seeking to enter the local labor market, as under current B-1 guidelines and must continue to be paid from an overseas source and the proposed business activities must be international in scope. It appears that professionals are permitted to perform local services, as long as they remained on the Canadian payroll of the employer.

Only professionals who are listed in Schedule 2 of Annex 1603 of NAFTA. Schedule 2 is included in the INS regulations at 8 CFR § 214.6(c). qualify for the temporary employment.

TN status under NAFTA

To qualify for TN status, the intended U.S. activity must be in a profession listed on Schedule 2 of Annex 1603 of NAFTA, and the alien must possess the qualifications provided for in Schedule 2. With regard to the alien's qualifications, a bachelor's or higher degree is usually required, unless Schedule 2 lists alternative qualifications.

Entering U.S.

Canadian professionals may enter the United States under NAFTA simply by providing documentation at the port of entry that they are engaged in one of the designated professions and that they possess the requisite educational credentials to qualify in the listed profession.

Mexican nationals, on the other hand, seeking TN status must comply with a procedure that is identical to that for H-1B classification for nationals of other countries. Their employer must file a petition for TN status with the INS, and the petition must be supported by the same labor attestation or labor condition application (LCA) required for any H-1A or H-1B alien. Furthermore, once the petition is approved, the Mexican TN must obtain a visa from a U.S. consulate prior to admission to the United States. Only 5,500 Mexican TNs may be admitted each year, for a ten-year period, although this number may be increased by a separate agreement of the U.S. and Mexican governments.

Temporary Nature of Employment

TN professional must provide evidence that his or her work assignment in the United States will end at a "predictable time" and that he or she will depart upon completion of the assignment. The rules provide that the alien must identify the purpose of his or her entry that is limited in time, e.g., to perform services under a contract with a U.S. entity for a specified period of time.

As a result, extensions are permissible provided the TN professional can identify a time-limited purpose for the extension, e.g., to perform services for the same entity under an one-year extension of a service contract or to perform services with different U.S. entity under a time-limited service contract. Once permanent residence papers are filed, TN aliens will have great difficulty in obtaining TN status from the INS or TN visa issuance from the State Department

Duration of Stay

An alien may be admitted to the United States in TN status for the period of time required by the employer, up to a maximum initial period of stay of one year. TN professionals can receive extensions of stay in one-year increments, with no outside limit on the total period of stay. This is a significant advantage in the maximum terms of stay allowed on for H-1B (six years) and L nonimmigrants (five or seven years). Furthermore, Canadian and Mexican professionals who have already completed six years in the H-1B or L nonimmigrant category can immediately qualify for the TN category without fulfilling the requirement of one-year- abroad imposed by the regulations for H-1 and L aliens. The only limitation on the duration of stay of TN nonimmigrants is that the purpose of the stay must continue to be temporary.

Dependents

Dependents (spouses and unmarried children under 21 years of age) of TN professionals are entitled to TD status with the same restrictions as the principal. Dependents may be students in the U.S., but may not be employed under the TD status.

Petition Document Requirements

For a Canadian citizen:
This classification does not require a petition for employment if the alien is a Canadian citizen and is outside of the U.S. Canadian citizens need not obtain TN-1 consular visas, and may apply directly at Class A U.S. ports of entry. They must provide:

  • A statement from the employer with a full description of the nature of the duties the beneficiary will be performing, the anticipated length of stay, and the arrangements for pay or reward;
  • Evidence that the beneficiary meets the education and/or alternative credentials for the activity;
  • Evidence that all licensure requirements, where applicable to the activity, have been satisfied;
  • Evidence of Canadian citizenship.

For a Mexican citizen:
An employer in the United States must file the I-129 petition and must file it with:

  • A statement from the employer with a a full description of the nature of the duties the beneficiary will be performing, the anticipated length of stay, and the arrangements for pay or reward;
  • Evidence that the beneficiary meets the education and/or alternative credentials for the activity;
  • Evidence that all licensure requirements, where applicable to the activity, have been satisfied;
  • Evidence of Mexican citizenship; and
  • A certification from the Secretary of Labor that the petitioner has filed the appropriate labor condition application or labor attestation for the specified activity.