| T/N Professional Entry under North American
Free Trade Agreement (NAFTA)
The 1993 North
American Free Trade Agreement (NAFTA) contains immigration
provisions relating to various nonimmigrant visas categories
for Canadians and Mexicans. This article will focus on the
TN-1 (Trade NAFTA Professional) for Canadians.
The TN-1 visa is the functional equivalent of the H-1B visa
for other foreign professionals with a few significant advantages.
The TN-1 visa, although issued for only one year at a time,
has no definite cap on the number of renewals. No forms are
required to apply for the visa. It can be obtained in person
at the US-Canadian border. No Labor Condition Application
(LCA) is required prior to application. Approval of the application
is immediate.
REQUIREMENTS FOR TN-1 STATUS
- The Applicant must be a Canadian citizen.
- The business activity and the Applicant must qualify under
Schedule 2 of NAFTA
- The Applicant must possess any required licenses to practice
the profession in the state of proposed employment.
- The Applicant must provide documentation of remuneration
arrangements with the U.S. employer.
- The U.S. employment must be temporary in nature.
- There must be no strike or lockout from a labor dispute
at the place of business of the U.S. employer where the
TN-1 employee will be employed.
Canadian Citizenship The TN-1 category is available
only to Canadian citizens. Qualified Canadian landed immigrants
must apply for the H-1B visa. The Applicant must present a
Canadian passport or birth certificate to prove the requirement.
Qualifying under Schedule 2 of NAFTA
Generally, the Applicant must fit within one of the scheduled
professions listed in Appendix 1603.D.1 of NAFTA. To see a
list of the scheduled professions, click
here. Like the H-1B category, the TN-1 category generally
requires that the Applicant have a baccalaureate (bachelor’s)
degree in the listed profession. Unlike the H-1B category,
however, no allowance is made for equivalent work experience
unless otherwise noted in the list. The degree must be recognizable
as one required for practice in the Applicant’s profession
and of the necessary level to qualify the Applicant for the
U.S. employment. In some cases, both a bachelor’s degree and
a level of experience in the field are required. Evidence
of the Applicant’s qualifications can be in the form of university
or college transcripts indicating the appropriate degree,
diplomas, degrees, licenses and/or membership in professional
organizations.
With respect to the employment, the nature of the work to
be performed must be professional in nature. The employer
may be either a U.S. entity or individual, but cannot be the
Applicant himself. The U.S. employer must fully detail the
work to be done in a letter. TN-1 status is granted for one
employer only. Multiple employers require separate TN-1 applications.
Required Licensing
Generally, where a license is required in the U.S. state
in which the employment is located, the Applicant must provide
proof that he has obtained such a license. In certain professions,
members of the profession do not require a license provided
that they will work under the supervision of licensed personnel.
In the case of professions that customarily permit this arrangement,
the INS will approve an unlicensed Applicant. Evidence of
licensure would be presentation of a valid professional license
from the state of intended employment. In the event that Applicant
is unlicensed, the employer must explain in the employment
letter why the Applicant does not require a license to be
employed in the profession in that particular state.
Remuneration Arrangements
A letter from the U.S. employer stating the amount of remuneration
to be paid to the Applicant should be sufficient.
Temporary Nature of Employment
Unlike, H-1B and L-1 professionals, the TN-1 professional
may not have dual intent. Dual intent is a doctrine that allows
an Applicant to have the intent to depart the U.S. at the
conclusion of his non-immigrant visa and, at the same time,
the intent to seek permanent residency in the U.S. based on
that visa. At the time that the TN-1 application is made,
the Applicant must have the intent to depart the U.S. at the
conclusion of his employment. This does not, however, preclude
the Applicant’s later applying for permanent residency based
upon the TN-1 employment.
|
