The North American Free Trade Agreement (“NAFTA”) created the TN (“Trade Nafta”) nonimmigrant classification, to permit Canadian and Mexican nationals to apply for temporary work authorization in the United States. The TN is limited to only certain professions. Almost all require a post-secondary degree, with two exceptions: TN Management Consultants and TN Scientific Technicians.
If you are considering a TN, you can review the regulations, § 214.6 Canadian and Mexican citizens seeking temporary entry to engage in business activities at a professional level here: http://www.nafsa.org/_/file/_/amresource/8cfr2146.htm
In particular, Appendix 1603.D.1 to Annex 1603 of the NAFTA establishes the minimum requirements for qualification for each the professions listed.
CANADIANS ARE VISA EXEMPT
Canadians are “visa exempt,” which means they are not required to secure a visa (aka foil) from a U.S. Embassy or Consulate to enter the United States as a TN (or in any other nonimmigrant visa classification, with the exception of E-1 or E-2 treaty traders or investors).
Rather, a Canadian may present themselves to the U.S. CBP (United States Customs and Border Protection) upon entering the United States, with paperwork in hand, in support of a request for up to three-years of TN work-authorized status.
The TN application process can be completed, in-person, on-the-spot, at a border crossing, or Preclearance Location, found within major Canadian international airports (such as Lester B. Pearson International Airport in Toronto, or Vancouver International Airport).
Extensions of TN status may be secured by returning to a CBP point-of-entry, or by filing an I-129 petition from inside the United States, with the USCIS (United States Citizenship and Immigration Service).
TN MANAGEMENT CONSULTANTS
The IFM (Inspectors Field Manual) defines a TN Management Consultant as someone who:
Provides services which are directed toward improving the managerial, operating, and economic performance of public and private entities by analyzing and resolving strategic and operating problems and thereby improving the entity’s goals, objectives, policies, strategies, administration, organization and operation. Management Consultants are usually independent contractors or employees of consulting firms under contracts to U.S. entities.
From the perspective of U.S. immigration authorities, TN Management Consultants should NOT be involved in the day-to-day management of a company. They SHOULD BE separated from day-to-day operations, identifying areas for improvement, and making recommendations.
TN Management Consultants need to have a bachelor’s or licenciatura degree, or equivalent professional experience, as established by a 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.
A TN Management Consultant is eligible for initial approval for up to three-years, like every other TN occupation. Practically, the duration of a particular proposed consulting project in the United States is a consideration. For example, in some cases it makes sense to ask for approval to match the duration of the proposed consulting engagement.
Spouses and children of TN workers are eligible for dependent visas in the “TD” nonimmigrant visa classification. TD spouses and children may NOT work. It is possible for TD spouses, if eligible, to qualify for temporary worker status independently, either through their own TN, or another nonimmigrant visa category.
INTENDING IMMIGRANT ISSUE
The TN classification requires applicants to demonstrate temporary intent to reside in the United States. As a result, applicants seeking TN status may be refused, based on a determination by U.S. CBP that the applicant has immigrant intent (intent to stay in the U.S. on a permanent basis).
If you are interested in the TN and have questions please don’t hesitate to contact me at 1-415-215-6883, or Michael@ryvinlaw.com.