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Posted on September 5, 2008 by VisaPro.com | Posted under Legal
TN Visa, a viable alternative to H-1B for Canadians
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Qualifications for a TN Visa for a professional from Canada: To qualify for a TN Visa the applicant must demonstrate: - He or she is a citizen of Canada - The job offer in the US is one of the professions on the NAFTA list ; - The position in the US requires a NAFTA professional; - That they have a bona fide job offer from a US Employer; - They will be working in a prearranged full-time or part-time job, for a US employer (self employment is not permitted under NAFTA); and - They posses the required qualification of the profession in which you will be working in the US. Who does not qualify for a TN Visa? The TN visa category is available only to citizens of Canada and Mexico. Permanent residents or landed immigrants of Canada or Mexico are not eligible - NAFTA made provisions only for citizens of the member countries. TN Visa Processing and Admissions Procedure for Canadians Because Canadians are visa exempt they may apply for TN-1 classification directly at any US Class “A" port of entry, at a U.S. airport handling international traffic, or at a U.S. pre-flight/pre-clearance station in Canada. The following documentation and information is required for a TN application: - Request for admission under TN status to Department of Homeland Security, Customs and Border Protection, U.S. immigration officer; - Employment Letter - Evidence of professional employment. - Proof of professional qualifications, such as transcripts of grades, licenses, certificates, degrees, and/or records of previous employment; - Proof of ability to meet applicable license requirements (if licensing is required); - Proof of Canadian citizenship - Canadian citizens may present a passport, as visas are not required, or they may provide secondary evidence, such as a birth certificate. However, Canadian citizens traveling to the United States from outside the Western Hemisphere are required to present a valid passport at the port of entry; and - Payment of the required filing fees (either the Form I-129 fee at the Service Center or a modest I-94 fee at the port of entry or pre-flight inspection. Letter of Employment: Your prospective employer in the U.S. will provide you a Letter of Employment. The letter must indicate that the position in question in the US requires the employment of a person in a professional capacity, consistent with the requirements listed by NAFTA. The letter should include sufficient information and evidence of the professional employment to satisfy the inspecting officer of your plans to be employed in prearranged business activities for a US employer or entity at a professional level. Part-time employment is permitted as well as having multiple employers (however you must be approved for employment with each employer). Self-employment is not permitted. The employment letter or contract should provide a detailed description of the business activities of the US, and should include the following: - Activities in which the applicant will be engaged; - The specific purpose of entry; - The anticipated length of stay; - The applicant's educational qualifications or appropriate credentials demonstrating their professional status; - Evidence of compliance with DHS regulations, and/or state laws; - Arrangements for payment or remuneration; and - Although not required in all cases, proof of licensure to practice a given profession in the United States may be offered along with a job offer letter, or other documentation in support of a TN visa application. Dual Intent: The TN Professional Visa does not recognize dual intent. At the time of application you must demonstrate that your stay in the US will be temporary, reasonable and finite. Duration of Stay: The maximum period of admission into the U.S is one year. The USCIS may grant extensions of stay of up to one year at a time. There is no limit on the number of years a TN visa holder can stay in the United States. However, as noted above there is no dual intent with the TN visa and you must prove that you intent to return to Canada at the end of your authorized stay; the TN visa status is not for permanent residence. Extension of Stay You may seek an extension of stay, which may be granted up to one year at a time: - If you are in the U.S., your employer may file Form I-129, Petition for Non-immigrant Worker, with the USCIS Nebraska Service Center; or - You may apply at any Class A port of entry using the same application and documentation procedures above as required for the initial entry. TN in contrast to H-1B: The TN visa status has some similarities with the H-1B visa, but it also has some significant differences. The most important difference between H1B Visa and TN Professional Visa is that TN status does not support the doctrine of dual intent. Therefore, while you are in TN status you must be careful if you desire to pursue a green card (you should first switch to an H-1B visa before applying for the green card, or you must carefully time things so you do not have to attempt to renew your TN status after the green card application is formally pending). Advantages of TN over H-1B are: - Although the TN is granted for only one year at a time, the number of renewals granted to the TN Visa holders is currently unlimited, whereas H-1B status has a definite time cap. - No specific forms are required for the TN application made at a US port of entry or preflight inspection, unlike the H-1B. - TN status can be directly obtained in person at a US port of entry or preflight inspection instead of having to be submitted to the USCIS for pre-approval as do most other visa applications. - TN status is available to some people who would not qualify for H-1B status. One of the major advantages of the TN visa is that not all professional positions require that the applicant have a bachelor's degree. Several TN professional positions require only a two or three year degree plus three years experience (Computer Systems Analysts, Graphic Designer Hotel Manager, Industrial Designer, Interior Designer, Technical Publications Writer, and Medical Laboratory Technologist), while others only require that the applicant have the appropriate state or provincial license (Accountant, Engineer, Forester, Land Surveyor, Lawyer, and the medical professions). Finally, there are two professions that do not require any formal post-secondary education to qualify for the TN status at all: 1. Management Consultant: This category generally receives a higher level of scrutiny from immigration inspectors because it is one of the two listed occupations under which one may qualify without any formal degree, and it continues to plague practitioners. * Role of Management Consultants: Management Consultants improve the managerial, operating and economic performance of public and private companies by analyzing and resolving strategic and operating problems and thereby improving the company's operations. Management Consultants are normally independent contractors or employees of consulting firms under contract to U.S. companies. * CBP Officials and the Management Consultants: CBP inspectors consider the management consultant category under NAFTA to be an invitation for fraud and abuse. Therefore, the very flexibility that was built into the category as an advantage (as one of the few categories without an educational requirement) has made it into a potential pitfall for pro se and uninformed applicants. Conversely, a management consultant application is one that can benefit from clear legal analysis, careful documentation, and astute advocacy. With appropriate preparation and presentation, it can fill a great need when there may be no other option. * How to qualify as a Management Consultant: The CBP/USCIS officer may not accept a resume from the TN applicant as proof of the relevant work experience. Instead, the officer may require detailed letters from the TN applicant's previous consulting assignments or employment verifying that the experience is related to the duties that he or she will perform in the United States. 2. Scientific Technician/Technologists: The Scientific Technician/Technologist category is another highly scrutinized category by CBP/USCIS officers because it also does not require a baccalaureate/licenciatura degree. * Role of the Scientific Technician/Technologist: The duties of the Scientific Technician/Technologist must be managed, coordinated and/or reviewed by a supervisor who is a professional in the field. The Scientific Technician/Technologist must also provide input to the supervisory professional's own work. * Key skills to be possessed by a Scientific Technician: A Scientific Technician/Technologist must possess: (1) theoretical knowledge of any of the following disciplines: agricultural sciences, astronomy, biology, chemistry, engineering, forestry, geology, geophysics, meteorology, or physics; and (2) the ability to solve practical problems in any of those disciplines or the ability to apply principles of any of those disciplines to basic or applied research. * How to qualify as a Scientific Technician/Technologist: In order to qualify for the category, the Scientific Technician/Technologist must have acquired his or her theoretical knowledge through the "successful completion" of at least two years of training in a "relevant" educational program. If the Scientific Technician/Technologist's educational background is not clearly related to the occupation, an independent evaluation should be obtained to confirm the relevance of the training to the occupation prior to applying for the TN status. The ability to enter the US without having to meet the bachelor's degree requirement of the H-1B visa category is a great benefit for Canadian and Mexican nationals that have the experience but not the degree. Spouses and Children of TN Visa Holder: Can your dependants accept employment in the U.S. on derivative TD status? The spouses and unmarried children under the age of 21 who are accompanying or are intending to join principal TN visa holder in the US may receive derivative TD status. Applicants must demonstrate a bona fide spousal or parent-child relationship to the principal TN visa holder. The spouse and children do not have to be citizens of Canada. Additionally, the TD spouse and children cannot accept employment in the US; however they are permitted to study in the US. Your spouse or children intending to join you must show a valid I-94, thereby providing proof that you as the principal TN visa holder are maintaining your TN status. Conclusion: TN (Trade NAFTA) visa has become one of the best alternatives to the H-1B for Canadian citizens. Not only is there no limitations on the number of TN visa available each year, there is no limit on the number of years a person can remain in TN status. Finally, the process of obtaining TN status is quick and relatively easy, and not all professions require a bachelor's degree. The major drawback of the TN visa is its lack of dual intent. Before applying for the TN Visa you must make sure that your profession falls within the listing of qualifying professions as set out by NAFTA. With the emergence of TN visa, professional Canadians have been able to access the US market with greater ease and comfort. About The Author: VisaPro processes the Visas in the Fast, Easy & Convenient way. We process your visa application online from the comfort of your home or office. VisaPro offers more than 100 immigration services & our attorneys excel in all areas of Immigration Law. If you want to discuss your case, you can consult our Expert Immigration Attorneys, they would be happy to assist you. |
Tags: TN CANADA, TRADE NAFTA, WORK VISA, TN VISA, H-1B VISA, TD VISA, USCIS, I-129, NAFTA.
