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.
