NAFTA 2.0: TN Visas for Canadian and Mexican Citizens – Seemingly Simple

Arguably, the single promise on which Donald Trump campaigned on the most was immigration, a crackdown on illegal immigration.  And, boy, has he been delivering on that promise since taking office again.  However, his illegal immigration crack down has seemingly bled into legal immigration as evidenced by some recent developments in TN processing with the uptick in the denial of TN applications lately.

Now, more than ever, it is imperative that TN applications be carefully crafted with an eye toward extreme vetting when Canadians go to the border and Mexicans to a U.S. consulate to apply for TN status or a TN visa, respectively.  But before discussing who is eligible to apply, let’s briefly take a look at what a TN is.

What is a TN?

TN, which stands for Trade NAFTA, is a non-immigrant[1] status that allows Canadians and Mexicans to work in the United States in specifically enumerated occupations.  It was created when the North American Free Trade Agreement, (“NAFTA”) between Canada, the United States, and Mexico, was signed.  NAFTA was superseded by the trade agreement currently in place that is often dubbed NAFTA 2.0 but is referred to differently by each signatory.  In the United States it is called the United States- Mexico-Canada Agreement or USMCA while in Canada it is officially known as CUSMA (Canada-United States-Mexico Agreement) and in Mexico it goes by T-MEC (Tratado entre Mexico, Estados Unidos y Canada).

Since NAFTA’s successor agreement, which will be referred to here as the USMCA, did not change any of the requirements for the visa, we’ll now turn to who is eligible to apply.

TN Eligibility

As already suggested, only Canadian and Mexican nationals are eligible to apply for a TN, namely those who are professionals that will work for an employer in the United States based on an offer of employment that has already been extended or business activities that have already been arranged. 

Only certain professionals in the fields of business, medicine, science, and education qualify provided that they have the necessary educational, licensing, and/or experiential qualifications required for the profession as listed in the agreement.  The USMCA contains a list of 63 occupations that can be found in Annex 16-A, Appendix 2.

Typically, applicants must hold a bachelor’s degree, but some occupations like Management Consultant or Scientific Technician/Technologist only require experience or knowledge still Computer Systems Analysts can possess a post-secondary diploma to qualify.

So long as Canadian and Mexican professionals possess the qualifications listed for the particular occupation in Annex 16-A, Appendix 2 they can apply for the status or the visa.

Applying for a TN: Status vs. Visa

Since Canadians are visa exempt from most U.S. non-immigrant classifications, they do not apply for a visa; rather, they apply for TN status.  And the status is applied for at the border, whether at a land port-of-entry or at the airport, when en route to work in the U.S.  Canadians submit their application to a border officer who interviews them, renders a decision on the case and, if approved, is admitted to the U.S. in TN status.

Mexicans, on the other hand, are not visa exempt.  They must apply for a visa at a U.S. embassy or consulate.  If application is being made from within Mexico, only three consular posts in Mexico process TN visas: the U.S. embassy in Mexico city, the U.S. consulate in Guadalajara; and the U.S. consulate in Ciudad Juarez.  

Mexicans must first complete the online non-immigrant visa application, schedule a visa appointment, pay the fee, and be interviewed by a consular officer who determines the outcome of the case – this process is known as consular processing.  If the application is approved, the applicant’s passport is stamped with the visa thereby allowing them to travel to the U.S. border and ask for permission to enter the country in the status.

Whether Canadian or Mexican, the end result is the same – admission to the U.S. in TN status – but the duration of the status typically differs between them.

Lenth of Stay in TN Status

Three (3) years is the maximum amount of time for which TN status can be initially requested and granted, and Canadians are often given the maximum when admitted.  Despite a request for the maximum, however, Mexicans are typically given only 1-year consistent with the visa, which is for the same period of time.

Whether applicants are granted the maximum 3-year stay or less, an extension or renewal of the status can be sought by filing a petition with USCIS from within the United States prior to the expiration of the current period of TN status.  If the maximum time is requested on the extension and approved, the beneficiary will be granted an additional 3 years, whether they are Canadian or Mexican, all without having to leave the country.

So long as one remains eligible, TN status can be renewed indefinitely by either submitting the case from within the U.S., at the border, or going through consular processing.

What About Family Members? TD Status

Consistent with the applicant’s grant of TN status, spouses and children may apply for dependent status known as TD or Trade Dependent either at the same time as or any time after the principal applicant receives TN status or a TN visa.  Like the principal applicant, Canadian dependents apply for TD status at the border while Mexican and non-Canadian citizen dependents apply for a TD visa at a U.S. embassy or consulate.  Although TD status does not allow for work authorization, spouses and children can attend school. 

While seemingly simple, applying for a TN can be fraught with pitfalls.  Certain occupations – Engineers, Management Consultants, Animal Breeders, Computer Systems Analysts, Scientific Technicians/Technologists – continue to be at issue resulting in numerous denials for these and other professions.  For this reason, and given the unprecedented times, legal counsel ought to be sought from consultation and retained for case preparation and preparedness for the interview by a border or consular officer.

Disclaimer: The information provided in this blog post is for general informational purposes only and does not constitute legal advice.  While efforts are made to ensure the content is accurate and up to date at the time of publication, laws and regulations may change, and the information may no longer be current.  You should consult a qualified legal professional for advice specific to your situation.

[1] Non-immigrant means remaining temporarily in the United States.