The ABC's Of Immigration: NAFTA Visas For Canadians and Mexicans
by
Greg Siskind and Amy Ballentine
The TN nonimmigrant visa
was created after the passage of the North American Free Trade Agreement (NAFTA)
in 1993. The agreement eased trade
restrictions between Canada, the US and Mexico, and called for some new
immigration rules. It eased
restrictions on E and L visas, and created a new type of visa, the TN.
Business Visitor Visa
under NAFTA
NAFTA also expanded the
grounds upon which Canadians and Mexicans can enter the US as business visitors.
The activities that can be engaged in on a business visitor visa under
NAFTA are as follows:
- Research
and design – covers technical, scientific, and statistical researchers
conducting independent research for an enterprise located in Canada or
Mexico
- Growth,
manufacture and production –
- Harvester
owner supervising a harvesting crew admitted under applicable law (applies
only to harvesting of agricultural crops:
grain, fiber, fruit, and vegetables
- Purchasing
and production management personnel conducting commercial transactions for
an enterprise located in Canada or Mexico
- Marketing
–
- Market
researchers and analysts conducting independent research or analysis, or
research or analysis for an enterprise located in Canada or Mexico
- Trade
fair and promotional personnel attending a trade convention
- Sales
–
- Sales
representatives and agents taking orders or negotiating contracts for
goods or services for an enterprise located in Canada or Mexico, but not
delivering goods or providing services
- Buyers
purchasing for an enterprise located in Canada or Mexico
- Distribution
–
- Transportation
operators transporting goods or passengers to the United States from the
territory of another Party or loading and transporting goods or passengers
from the United States to the territory of another Party, with no
unloading in the United States, to the territory of another Party. (These
operators may make deliveries in the United States if all goods or
passengers to be delivered were loaded in the territory of another Party.
Furthermore, they may load from locations in the United States if all
goods or passengers to be loaded will be delivered in the territory of
another Party. Purely domestic service or solicitation, in competition
with United States operators, is not permitted.)
- Customs
brokers performing brokerage duties associated with the export of goods
from the United States to or through Canada
- After-sales
service –
- Installers,
repair and maintenance personnel, and supervisors, possessing specialized
knowledge essential to the seller's contractual obligation, performing
services or training workers to perform services, pursuant to a warranty
or other service contract incidental to the sale of commercial or
industrial equipment or machinery, including computer software, purchased
from an enterprise located outside the United States, during the life of
the warranty or service agreement. (For the purposes of this provision,
the commercial or industrial equipment or machinery, including computer
software, must have been manufactured outside the United States.)
- General
service –
- Professionals
engaging in a business activity at a professional level in a profession
set out in Appendix 1603.D.1 to Annex 1603 of the NAFTA, but receiving no
salary or other remuneration from a United States source (other than an
expense allowance or other reimbursement for expenses incidental to the
temporary stay) and otherwise satisfying the requirements of Section A to
Annex 1603 of the NAFTA
- Management
and supervisory personnel engaging in commercial transactions for an
enterprise located in Canada or Mexico
- Financial
services personnel (insurers, bankers or investment brokers) engaging in
commercial transactions for an enterprise located in Canada or Mexico
- Public
relations and advertising personnel consulting with business associates,
or attending or participating in conventions
- Tourism
personnel (tour and travel agents, tour guides or tour operators)
attending or participating in conventions or conducting a tour that has
begun in Canada or Mexico. (The tour may begin in the United States; but
must terminate in foreign territory, and a significant portion of the tour
must be conducted in foreign territory. In such a case, an operator may
enter the United States with an empty conveyance and a tour guide may
enter on his or her own and join the conveyance.)
- Tour
bus operators entering the United States:
- With
a group of passengers on a bus tour that has begun in, and will return
to, Canada or Mexico
- To
meet a group of passengers on a bus tour that will end, and the
predominant portion of which will take place, in Canada or Mexico
- With
a group of passengers on a bus tour to be unloaded in the United States
and returning with no passengers or reloading with the group for
transportation to Canada or Mexico
- Translators
or interpreters performing services as employees of an enterprise located
in Canada or Mexico
As with all business
visitor visas, the visa holder must be compensated from a source outside the US,
must be engaged in activities that are international in scope, and must not seek
to enter the US labor market.
TN Visas
The TN visa is similar
in requirements to the H-1B visas, although it has both substantial benefits and
drawbacks to that visa category. The
ways in which a TN visa is more advantageous than an H-1B are as follows:
TN visas are not subject to an
annual cap
TN visas can be renewed
indefinitely
TN visas cover a broader range
of job descriptions, which will be detailed later in this article
There is no prevailing wage
requirement for TN visas
Canadian citizens can obtain a
TN visa at the border, meaning there is no wait for the visa
A TN visa can be obtained by a
person who has held H-1B status for the full six years without fulfilling the
requirement of spending one year outside the US, a requirement that must be
complied with before obtaining other nonimmigrant work visas
While these advantages
makes the TN visa seem an ideal substitute for the H-1B for Canadian and Mexican
citizens, there are some drawbacks that must be considered, such as:
- Unlike
H-1B visas, the TN visa is not a “dual intent” visa.
That is, where a person on an H-1B visa may pursue permanent
residency without having their visa revoked because they now have immigrant
intent, a person on a TN visa cannot pursue permanent residency without
risking their TN status.
- Experience
cannot be used as a substitute for the degree requirement
- A
TN visa can be denied if the Department of Labor certifies that there is a
strike or other work stoppage, the resolution of which would be adversely
affected by the admission of the TN nonimmigrant
TN visas provide for the
admission of those who will be engaged in “activities at a professional
level” in the US. “Activities
at a professional level” are defined at those that require at least a
bachelor’s degree or credentials and experience demonstrating that the person
is a professional. Self employment
is not permissible on a TN visa, but the TN visa holder can work for a company
in which they have an ownership interest, even a controlling interest.
Both the NAFTA treaty
itself and INS regulations specify which professions qualify for TN status.
These are the professions and the degrees required:
- Accountant--Baccalaureate
or Licenciatura Degree; or C.P.A.,
C.A., C.G.A., or C.M.A
- Architect--Baccalaureate
or Licenciatura Degree; or state/provincial license
- Computer
Systems Analyst--Baccalaureate or Licenciatura Degree; or Post-Secondary
Diploma or Post Secondary Certificate and three years' experience
- Disaster
relief insurance claims adjuster (claims adjuster employed by an insurance
company located in the territory of a Party, or an independent claims
adjuster)--Baccalaureate or Licenciatura Degree and successful completion of
training in the appropriate areas of insurance adjustment pertaining to
disaster relief claims; or three years experience in claims adjustment and
successful completion of training in the appropriate areas of insurance
adjustment pertaining to disaster relief claims
- Economist--Baccalaureate
or Licenciatura Degree
- Engineer--Baccalaureate
or Licenciatura Degree; or state/provincial license
- Forester--Baccalaureate
or Licenciatura Degree; or state/provincial license
- Graphic
Designer--Baccalaureate or Licenciatura Degree; or Post-Secondary Diploma or
Post-Secondary Certificate and three years experience
- Hotel
Manager--Baccalaureate or Licenciatura Degree inhotel/restaurant management;
or Post-Secondary Diploma or Post-Secondary Certificate in hotel/restaurant
management and three years experience in hotel/restaurant management
- Industrial
Designer--Baccalaureate or Licenciatura Degree; or Post-Secondary Diploma or
Post-Secondary Certificate, and three years experience
- Interior
Designer--Baccalaureate or Licenciatura Degree; or Post-Secondary Diploma or
Post-Secondary Certificate, and three years experience
- Land
Surveyor--Baccalaureate or Licenciatura Degree or state/provincial/federal
license
- Landscape
Architect--Baccalaureate or Licenciatura Degree
- Lawyer
(including Notary in the province of Quebec)--L.L.B., J.D., L.L.L., B.C.L.,
or Licenciatura degree (five years); or membership in a state/provincial bar
- Librarian--M.L.S.,
or B.L.S. (for which another Baccalaureate or Licenciatura Degree was a
prerequisite)
- Management
Consultant--Baccalaureate or Licenciatura Degree; or equivalent professional
experience as established by statement or professional credential attesting
to five years experience as a management consultant, or five years
experience in a field of specialty related to the consulting agreement
- Mathematician
(including Statistician)--Baccalaureate or Licenciatura Degree
- Range
Manager/Range Conservationist--Baccalaureate or Licenciatura Degree
- Research
Assistant (working in a post-secondary educational
institution)--Baccalaureate or Licenciatura Degree
- Scientific
Technician/Technologist--Possession of (a) theoretical knowledge of any of
the following disciplines: agricultural sciences, astronomy, biology,
chemistry, engineering, forestry, geology, geophysics, meteorology, or physics; and (b) 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
- Social
Worker--Baccalaureate or Licenciatura Degree
- Sylviculturist
(including Forestry Specialist)--Baccalaureate or Licenciatura Degree
- Technical
Publications Writer--Baccalaureate or Licenciatura Degree, or Post-Secondary
Diploma or Post-Secondary Certificate, and three years experience
- Urban
Planner (including Geographer)--Baccalaureate or Licenciatura Degree
- Vocational
Counselor--Baccalaureate or Licenciatura Degree
MEDICAL/ALLIED
PROFESSIONALS
- Dentist--D.D.S.,
D.M.D., Doctor en Odontologia or Doctor en Cirugia Dental or
state/provincial license
- Dietitian--Baccalaureate
or Licenciatura Degree; or state/provincial license
- Medical
Laboratory Technologist (Canada)/Medical Technologist (Mexico and the United
States) -- Baccalaureate or Licenciatura Degree; or Post-Secondary Diploma
or Post-Secondary Certificate, and three years experience
- Nutritionist--Baccalaureate
or Licenciatura Degree
- Occupational
Therapist--Baccalaureate or Licenciatura Degree;or state/provincial license
- Pharmacist--Baccalaureate
or Licenciatura Degree; or state/provincial license
- Physician
(teaching or research only)--M.D. Doctor en Medicina; or state/provincial
license
- Physiotherapist/Physical
Therapist--Baccalaureate or Licenciatura Degree; or state/provincial license
- Psychologist--state/provincial
license; or Licenciatura Degree
- Recreational
Therapist--Baccalaureate or Licenciatura Degree
- Registered
nurse--state/provincial license or Licenciatura Degree
- Veterinarian--D.V.M.,
D.M.V., or Doctor en Veterinaria; or state/provincial license
SCIENTISTS
- Agriculturist
(including Agronomist)--Baccalaureate or Licenciatura Degree
- Animal
Breeder--Baccalaureate or Licenciatura Degree
- Animal
Scientist--Baccalaureate or Licenciatura Degree
- Apiculturist--Baccalaureate
or Licenciatura Degree
- Astronomer--Baccalaureate
or Licenciatura Degree
- Biochemist--Baccalaureate
or Licenciatura Degree
- Biologist--Baccalaureate
or Licenciatura Degree
- Chemist--Baccalaureate
or Licenciatura Degree
- Dairy
Scientist--Baccalaureate or Licenciatura Degree
- Entomologist--Baccalaureate
or Licenciatura Degree
- Epidemiologist--Baccalaureate
or Licenciatura Degree
- Geneticist--Baccalaureate
or Licenciatura Degree
- Geochemist--Baccalaureate
or Licenciatura Degree
- Geologist--Baccalaureate
or Licenciatura Degree
- Geophysicist
(including Oceanographer in Mexico and the United States)--Baccalaureate or
Licenciatura Degree
- Horticulturist--Baccalaureate
or Licenciatura Degree
- Meteorologist--Baccalaureate
or Licenciatura Degree
- Pharmacologist--Baccalaureate
or Licenciatura Degree
- Physicist
(including Oceanographer in Canada)--Baccalaureate or Licenciatura Degree
- Plant
Breeder--Baccalaureate or Licenciatura Degree
- Poultry
Scientist--Baccalaureate or Licenciatura Degree
- Soil
Scientist--Baccalaureate or Licenciatura Degree
- Zoologist--Baccalaureate
or Licenciatura Degree
TEACHERS
- College--Baccalaureate
or Licenciatura Degree
- Seminary--Baccalaureate
or Licenciatura Degree
- University--Baccalaureate
or Licenciatura Degree
To obtain a TN visa, the
following documentation must be collected:
A letter from the prospective
employer
Diplomas (if the degree is from
Canada or Mexico, it must be evaluated)
Licenses and professional
memberships, if applicable
A letter should also be
submitted that outlines the following:
The nature of the professional
activity in which the visa holder will be engaged
The proposed length of stay
The beneficiary’s educational
credentials
That the beneficiary has the
necessary state licenses, if applicable
Arrangements for the
beneficiary’s salary
Canadian citizens
(landed immigrants do not qualify for TN visas) can present this documentation
at a port of entry or preclearance station at an airport. They do not need to present a petition approved by the INS,
or a labor condition application. They
will be given an I-94 valid for multiple entries over one year.
Once in the US, the TN visa holder can apply for an extension at the
Nebraska Service Center, which is also where application to change status to TN
are filed. A new application is not
required for a change in the place of employment, but is required for a change
of employer.
The procedures are
different for Mexican citizens. The
employer must apply for a TN visa at the Vermont Service Center, and must
present a labor condition application, or if the visa is for a nurse, a labor
attestation. While Canadians can
extend the TN visa indefinitely, TN visas for Mexicans are limited to one year.
There is also an annual limit of 5,500 TN visas that can be issued to
Mexican nationals. Mexicans must
obtain the TN visa at a US consulate, because they cannot seek one at the border
like Canadians can.
Spouses and children of
TN visa holders are given TD visas. Work
is not authorized under a TD visa. TD
visa holders are, however, allowed to attend school.
E Visas
NAFTA also reaffirmed
treaty-trader and treaty-investor status for Canadian citizens, and extended it
to Mexicans. The requirements for
E-1 and E-2 visas under NAFTA are the same as they otherwise are, with the
exception that entry may be denied when it would adversely affect the settlement
of a labor dispute in the US. This
provision is only triggered when the Department of Labor certifies the existence
of a strike or work stoppage, and does not apply to E visa holders already in
the US. Both Canadian and Mexicans
require a visa for entry in E status, making this one of the few categories in
which Canadians are required to have a visa for entry into the US.
L-1 Visas
NAFTA also made slight changes in the
requirements for L-1 intracompany transfers between the US and Canada and
Mexico. As with all entries under
NAFTA, entry in L-1 status can be barred if the Department of Labor certifies
the existence of a strike or other work stoppage in the region of intended
employment. The other change is
that Canadians can apply for L-1 status at the border. Mexicans are required to have a preapproved visa.
About The Author
Gregory Siskind is a partner in Siskind, Susser, Haas & Devine's
Memphis, Tennessee, office. After graduating magna cum laude from
Vanderbilt University, he received his Juris Doctorate from the
University of Chicago. Mr. Siskind is a member of AILA, a board member
of the Hebrew Immigrant Aid Society, and a member of the ABA, where he
serves on the LPM Publishing Board as Marketing Vice Chairman. He is
the author of several books, including the J Visa Guidebook and The
Lawyer's Guide to Marketing on the Internet. Mr. Siskind practices all
areas of immigration law, specializing in immigration matters of the
health care and technology industries. He can be reached by email at gsiskind@visalaw.com.
Amy Ballentine is an associate in Siskind,
Susser & Haas's Memphis, Tennessee office. She graduated Cum Laude with a Bachelor of Arts degree in English
Literature from Rhodes College in 1994. While in law school at the University of Memphis she was a member of the
law review staff as well as a published author. She also worked with the local public defender’s office in death
penalty cases. In May 1999, she graduated Cum Laude from the University of Memphis Law School. She is a member of the American Immigration Lawyers Association. She can be reached by email at aballentine@visalaw.com
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.
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