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TN Visa Qualifications & Concerns

Bridge Team Member

The TNvisa relates to the North American FreeTrade Agreement (NAFTA) and its partners –  the United States, Canada, and Mexico. BecauseNAFTA allows special trade and economic provisions for its three nation members,it authorizes nonimmigrant NAFTA Professional (TN) visas, which permit Canadianand Mexican citizens to work in the U.S. temporarily.

This visa option has been receiving someattention from the press lately, and given the current state of immigrationaffairs, now is as good a time as any to take a closer look at the TN visa.

TNVisa Qualifications

To obtain a TN visa, applicants mustfulfill specific requirements.These requirements are considered less rigorous than those for other nonimmigrantwork visas, and they include:

     - The applicant must be a Canadian orMexican national

     - The applicant must have been offered aposition in a profession that is included on the NAFTA-approvedlist in which he or she will work in eithera part-time or full-time capacity

     - The applicant must have the necessaryqualifications for the position – as outlined in the NAFTA-approved list

     - The U.S. position must require a NAFTAprofessional

In addition to the above requirements, typically, an applicant must have atleast a baccalaureate degree, which can’t be substituted for with experience.

Key Differences

TN visa status is granted for up tothree years at a time, but it can be renewed for additional three-year stints.While there is no set limit to the number of renewals, TN visas are temporaryvisas, which means that these visa holders should be able to demonstrate aclear intent to leave upon their visa’s expiration. Unlike an H-1B employee, whohas what is known as dual intent,a TN employee may not apply for citizenship or a Green Card while working inthe U.S.

Unlike the H-1B visa, the TN visadoesn’t require sponsorship or petition by an employer. Additionally, there isno cap on TN visas, so there’s no attendant concern related to racing the clockto obtain a visa before the cap is reached. TN visas are also substantiallyless expensive than H-1B visas and wait times are greatly reduced.

Letter of Concern

On Oct. 23, 2017, the Senate JudiciaryCommittee Chairman, Sen. Charles Grassley, R-Iowa, penned a letterto U.S. Trade Representative Robert Lighthizer. In this letter, Grassleyencouraged the administration to carefully consider the TN visa program duringtheir negotiations related to NAFTA, which are ongoing but so far ambiguousunder the new administration. This ambiguity is highlighted by its comparisonto President Trump’s harsh campaign rhetoric related to NAFTA.

Grassley begins by allowing that acomponent of NAFTA permits Canadian and Mexican nationals to be employed inhigh-paying professional jobs in the U.S. Later, however, Grassley states:

Evidence suggests that employers will pursue any means availableto hire high skill foreign workers, who generally cost less and are morevulnerable than American workers. Given the current administration’s focus onprotections for the American worker, including efforts to rein in the H-1Bprogram, businesses will be looking for alternative sources of cheap foreign labor to exploit.  With few restrictions and a ready supply of nearbyprofessionals, employers are likely to turn to the TN visa category … Thisuncapped and under-recognized pool of high skill employees exacerbates the risk to American workers already present in certainindustries that rely too heavily on foreign workers.

Although Grassley refers to theexploitation of cheap labor, it’s unclear whether this is the case. Employers ofTN workers aren’t held to any terms of prevailing wages, as are employers ofH-1B workers, but every TN visa applicant is interviewed by an immigrationofficer and questioned regarding his or her compensation as it relates to theTN visa. Minimal or substandard wages are presumably scrutinized to ensure thatthe U.S. labor market isn’t undermined.

Should you have any questions about how this impacts your business or employees, please do not hesitate to reach out to us at support@bridge.us.

Disclaimer: This content is not a form of legal advice and should not be treated as a substitute for legal counsel. Bridge US encourages readers to discuss any and all immigration-related concerns with an attorney.

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