The TN NAFTA is a temporary work permit for qualifying Canadian and Mexican nationals under the North American Free Trade Agreement. It is issued for periods of up to 3 years, renewable indefinitely, and there is no restriction on the number of TN’s that may be issued each year. To be eligible for TN status, an applicant must be engaged at a professional level in one of the occupations or professions on the TN skills list. Spouses and unmarried children under 21 may accompany the principal TN holder in TD (Trade Dependent) status. However, TD’s do not have authorization to work while in the US.

The TN classification does not allow for “dual intent,” that is, there is no provision in the law or regulations that allows a TN holder to apply for a Green Card (US permanent residence). In fact, due to the complexities of the concept of dual intent and the conflicts of certain temporary immigration categories with holding the intent to become a permanent resident, if a TN holder is considering such a move, it is wise to seek counsel on whether it may be best to change to another temporary visa status such as the H-1B Visa (which does allow for dual intent), and if so, when might be the appropriate time to do so.

Documentation and processing for the TN are different for Canadian and Mexican nationals.

TN NAFTA Self-Employment, Entrepreneurship

The TN NAFTA category does not offer an opportunity for entrepreneurs to set up a business entity that, in turn, sponsors them for TN classification. In fact, the regulations specifically disallow self-employment of TN holders. More specifically, TN holders may not be sole owners of, or hold a controlling interest in, their sponsoring entities.

Mexican TN Processing

On March 10, 2004, the Department of Homeland Security (DHS) removed the annual numerical cap on the number of Mexican professionals that may be admitted to the US annually under NAFTA. The rule also eliminated the past requirement for a Mexican-based NAFTA professional to file a petition and corresponding labor condition application.

Pre-2004 Procedures for TN Mexico

Prior to March 2004, a citizen of Mexico seeking to come to the US as a TN nonimmigrant was required to make an application to USCIS and was not able to just approach a border post for TN processing as Canadian citizens were were allowed to do. To properly file this form with USCIS, a TN applicant from Mexico had to also submit a certified Labor Condition Application (LCA) from the US Department of Labor (DOL). Upon USCIS approval of the TN application, the Mexican national then had to apply to the US Department of State (DOS) for a TN visa to enter the US.

Post-2004 Procedures for TN Mexico

The TN petition and LCA requirement for Mexican TN applicants have now been eliminated. Rather, a Mexican citizen who wants to come to the US in TN status must apply directly to DOS for a TN visa. DOS will then adjudicate the TN applicant’s eligibility for a TN visa, and upon approval and issuance of a TN visa, the TN visa applicant may then apply for admission to the US at a US Class A port-of-entry, at a US airport that handles international traffic, or at a US pre-clearance/pre-flight station.

A TN visa issued to a Mexican national by a US consular officer is valid for a maximum of one year. The TN visa validity limitation is required by the DOS reciprocity schedule between the US and Mexico. The validity of the TN visa, however, does not determine the period of time that a Mexican TN holder may be admitted to the US in TN status.

A Mexican national with a valid TN visa may be admitted to the US for up to 3 years in TN status.

Determining the Appropriate Period of Admission for Mexican TN Holder

A citizen of Mexico may be admitted to the US in TN status for up to 3 years if his/her passport will remain valid throughout this period and s/he is otherwise admissible to the US.

The period of initial admission for Mexican nationals in TN status should be for the full period of intended employment, up to a maximum of 3 years. A letter or similar statement supporting the TN application for admission and signed by the prospective TN employer should indicate the intended period of employment. If the period of employment will exceed the validity of the TN visa, the applicant for admission may still be admitted up to 3 years, regardless of the TN visa expiration date, if the TN applicant’s passport will remain valid throughout this period and the s/he is otherwise admissible.

TN Extension or Change of Employer

Requests for TN extensions of stay and requests to add or change TN employers must be submitted on Form I-129 (for both Mexican and Canadian nationals). However, no LCA is required to obtain a TN extension. Note that the TN extension request made on Form I-129 is not a petition for status within the meaning of §214(c)(1) of the Immigration and Nationality Act and does not confer any of the appeal rights normally associated with a petition. The Form I-129 in the extension context is merely the vehicle by which the Department collects the information necessary to make a determination on the TN extension application.