H-1B Woes? Consider TN Visa, Experts Say

By Roy Maurer Jul 6, 2016
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The TN visa category is a useful tool when recruiting skilled professionals—especially when the H-1B visa option dries up—provided the individuals are citizens of Canada or Mexico.

"The TN visa is controlled by the North American Free Trade Agreement (NAFTA), and is applied exclusively to citizens of Mexico and Canada who will be employed in certain occupations," said Karen Gillespie, managing attorney with Global Immigration Associates, a law firm exclusively retained by immigration legal services firm Visanow, based in Chicago.

"Although the TN visa category is limited to only Canadian and Mexican citizens who will work for U.S. employers in professions listed under NAFTA, the category has several advantages over the H-1B visa," she said, including saving employers time and money.

"I would argue that not only is the TN a great alternative to the H-1B for Canadians and Mexicans, in many cases it can be the preferred option," said Andrew Wilson, an immigration attorney and partner at Serotte Reich Wilson, based in Buffalo, N.Y. "One common misunderstanding is that you cannot pursue permanent residency while maintaining TN status. Many people believe you have to change to H-1B status in order to pursue permanent residency. That is not true, and if processed properly, an individual may maintain TN status while pursuing permanent residency," Wilson said.

Advantages of Using the TN Visa   

First, unlike the H-1B visa, there is no annual cap on TNs. "You can apply year-round and don't have to worry that the visas will run out," Gillespie said.

The TN visa also effectively has no max-out date. "In theory, employers can extend TN status indefinitely in three-year increments. As a practical matter, however, there are limitations on how long status will be granted," Gillespie said.

Another main advantage of TN visa status is that it can be obtained very quickly and so may be a worthwhile option for employers needing to fill immediate needs. Employers can avoid applying through the U.S. Citizenship and Immigration Services (USCIS), and the typically long processing time or the expense of premium processing. Canadians can apply directly at the U.S.-Canada border and Mexicans can apply at a U.S. consulate or embassy.

As long as the employee qualifies for TN visa status and has a properly prepared visa application with him or her, the individual can apply for a TN visa and enter the United States authorized to work after a brief interview with an adjudicating officer. "For us at the border here, we can accompany a client for the TN application process and speak with a Customs and Border Protection (CBP) officer," Wilson said. "The H-1B process is completed by mail through a service center and there really is no opportunity to directly speak with anyone about the case."

IN addition, there are no recruitment requirements to advertise for the position or to first try to hire a U.S. worker, no need for a certified Labor Condition Application from the Department of Labor, and no need to calculate the prevailing wage level. Instead, the minimum wage or salary requirements as required by federal and state laws, as well as any collective bargaining agreements, would apply.

Lastly, the government filing fees for TN visa applications are significantly less than the costs and fees for H-1B petitions.

Is My Job Eligible?

To be eligible for TN visa status, the incoming employee must hold Canadian or Mexican citizenship. "Being a legal resident or a work visa holder is not enough," Gillespie said. "They must have a passport from one of those countries."

Employers simply need to show that the incoming employee will be working in a qualifying TN NAFTA profession, will be performing duties consistent with employment in that profession and that the employee qualifies for work within the profession.

The biggest gripe about the program is that qualifying TN jobs must fit into one of the professions listed in the NAFTA regulations. The qualifying professions list of 63 occupations includes accountant, software engineer, lawyer, college professor and graphic designer.

A related concern for Wilson is the "limited and outdated information" in the Occupational Outlook Handbook (OOH), used almost exclusively by CBP and USCIS to determine whether a certain position falls under an occupational classification.

For example, Wilson explained, "if someone is applying for a TN under the Technical Publications Writer occupational classification, CBP or USCIS will look to see if the duties listed in the TN letter match up with what is described in the OOH. They almost view the OOH as gospel, and if the OOH does not have certain aspects of the position listed, the TN could be denied. This is true even if there is ample evidence from many other sources, including expert opinion letters, showing how a position may properly fall under an occupational classification."

The professions listed in NAFTA are generic and may not reflect an employer's internal job title.

Therefore, employers should first look at the OOH, Wilson advised. "Next they should look at related Department of Labor materials outlining normal job duties and requirements for various positions" to evaluate whether the position qualifies as a profession that is included on the NAFTA list, he said. 

Gillespie often hears frustrations from employers trying to hire for marketing and business management roles, "which are not good roles for a TN, because there is no marketing or business management profession on the list." The list includes a management consultant role but it "was built for those who come in to consult for a very short period of time and have a specific end date," she said.

Applying for a TN Visa

The TN visa application process can be done in three different ways. HR can file an application with the USCIS first and obtain an I-797 approval notice. Then a Canadian national can take that notice to the border and present it for admittance, or a Mexican national can take it to the embassy or consulate and get a visa stamp.

Gillespie recommends employers skip USCIS completely and have the incoming worker apply in person at a Canadian port of entry or at a U.S. embassy or consulate in Mexico. "But make sure your worker has all the documentation they need, because they are sitting at the border or at a consulate in front of an officer trying to answer questions," she said.

The foreign national will need to have an offer letter from the employer detailing its need for the employee, the NAFTA profession the employee will be working in, a detailed job description and the expected length of stay.

"A clear and persuasive support letter that outlines all the regulatory criteria being met and explains any 'weird' factors, like offsite employment, is important," Gillespie said. She added that the letter should be "freshly dated," so as not to raise suspicion that the job offer may be expired. An offer letter with a date of more than four weeks old can be problematic, she said.

Those seeking TN status will also need to provide proof of their credentials, a passport, their original diploma if possible and experience letters proving several years of experience in a certain role. "A resume alone is not enough," Gillespie said. The full list of necessary documents is here.

Gillespie suggested including "marketing materials or company financials as a good-faith effort to show that your company is real and actually operating in the U.S.," and if the worker will be working offsite, "I highly encourage companies to include documentation evidencing the offsite client relationship."

She added that a worker should avoid going to a different entry point if he or she was rejected the first time when applying for a TN visa to avoid suspicion and to be sure not to apply too early. "If the offer letter states that the job starts in August and the worker applies in June, that won't work."

Roy Maurer is an online editor/manager for SHRM.

Follow him @SHRMRoy

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