Frequently Asked Questions About TN Temporary Work Status

By Scott M. Borene*

1. What is TN status?

Since 1994, the North American Free Trade Agreement (NAFTA) has facilitated the relatively prompt admission of business persons from Canada and Mexico into the United States, and from the United States into Canada and Mexico. NAFTA contains a list of professions that qualify for TN status, a temporary work status that may be obtained with minimal processing time, especially for Canadian citizens.

2. When would an employer use a TN work status?

The TN category is appropriate for many situations where the employer must quickly fill a professional level position. Unlike the H-1B category, there are no wage requirements and there is no annual limit on the number issued. In some cases, TN status may be appropriate for workers who do not have a bachelor’s degree or equivalent.

3. What legal requirements must the employer satisfy to be eligible to hire a TN worker?

The employer must offer a job listed on the NAFTA list of professions. An initial period of up to 3 years may be requested. The TN status may be renewed for additional periods of up to three years at a time. The employer must be willing to end the employment relationship when the employee is not approved for renewal of TN status.

4. What legal requirements must the employee satisfy to be eligible for TN status?

In addition to engaging in a profession listed in Section D of Annex 1603 to NAFTA, the Canadian or Mexican prospective employee must have the required credentials to be classified as a TN “professional.” A bachelor’s degree or higher is required for most of the NAFTA professions. The TN worker must meet the normal screening criteria for entering the U.S. or changing from another lawful temporary immigration status in the U.S. If a candidate has a history of immigration violations or criminal activities, the TN status may be denied. In addition, the TN applicant must not be intending to immigrate permanently to the United States on that visit.

5. How long is a TN status valid?

Initial TN applications may be approved for up to three years and can be renewed or extended. If there are material changes in the terms of employment or the employer, a new TN application may be required or the TN status may become invalid. If the employee engages in work activities not encompassed by the employer’s application support letter, the employee may be found to be in violation of U.S. laws and may be deportable.

6. How long does it take to get TN approval?

Canadian workers can be processed for TN status as part of the normal entry procedures at an airport or other port of entry. If all is in order with the required documentation, TN status may be approved within minutes of arriving at a port of entry. Mexican TNs are required to obtain a TN visa from a U.S. consulate or embassy prior to applying for admission to the U.S. in TN status. If a TN worker is already in the U.S. in a lawful temporary immigration status, it is possible to file a TN petition with United States Citizenship and Immigration Services (USCIS), but most new employers opt for the speed of port of entry processing for Canadians.

7. Can a TN status be extended?

TN professionals can receive extensions of stay in up to three-year increments without limit, provided that the purpose of each visit continues to be temporary and provided that the TN employee maintains an intention to stay only temporarily in the U.S. for the duration of the TN employment. When a TN professional has received extensions for several years, it may become more difficult to convince the Customs and Border Protection officer that the stay is not permanent.

8. Does a TN status automatically turn into a green card?

No. In fact, if the U.S. immigration authorities believe a worker intends to remain in the U.S. permanently, the TN classification may be denied or cancelled. If the employer seeks to sponsor the TN worker for permanent resident (“green card”) status, it is generally advisable to change the worker’s status to H-1B before starting the permanent residence sponsorship process, since the H-1B status allows the ‘dual intent’ of seeking permanent residence while in the temporary H-1B status.

9. What are the chances of success in a typical TN case?

A careful screening by an immigration lawyer at the outset will normally uncover most potential complications that would reduce the probability of approval. Most well documented TN applications that meet the basic legal requirements are likely to be approved. The chance of approval may be somewhat reduced in cases involving the NAFTA professions that do not require bachelor’s degrees, such as Scientific Technicians or Management Consultants, or in cases where the TN employee’s education credentials do no fit well with the planned TN occupation or require further explanation.

10. Is there a minimum salary requirement?

No. However, a wage that is unusually low for the intended profession could lead to closer scrutiny of the application and a reduced chance of smooth approval.

11. Who usually pays the legal expenses?

The employer generally pays the legal costs and related expenses. The law does not prohibit reimbursement by the employee.

12. Can the TN employee’s spouse and children also get temporary permission to be in the U.S.?

Yes. TN workers’ family members may accompany them in TD status. TD status is not automatic, so family members must request TD status at the port of entry or apply for a change of status within the U.S. If the family members are not Canadian, they must apply for TD visas at a U.S. embassy/consulate. TD status is not intended for children 21 years of age or older, or for extended family members such as parents or siblings of the TN worker.

13. Can the TN’s spouse and children get permission to work in the U.S.?

The TN worker’s spouse and children are not eligible for employment authorization, unless they qualify on their own merits for a TN or other work-authorized category.

14. Can the TN’s spouse and children get permission to attend school as part-time or full-time students in the U.S.?

No special additional permission is required. Spouses and children in TD status may attend school on either a part-time or full-time basis.

 

*Scott M. Borene is the Founder and Managing Attorney of Borene Law Firm, P. A. The immigration lawyers now with Borene Law Firm have more than 70 years of combined professional experience helping clients with U.S. and global visa and immigration projects. Scott Borene was selected by other lawyers as 2018 Lawyer of the Year in Immigration Law as noted by The Best Lawyers in America and Minnesota Monthly magazine. He has been repeatedly recognized as one of the Top 20 Lawyers in the World “most highly regarded by other lawyers” in corporate immigration law. He is listed in the Best Lawyers in America and acknowledged as an Immigration Law Super Lawyer. He is often called upon to act as an “expert’s expert” to advise other experienced immigration lawyers on complex immigration matters. Scott Borene is a past Director and a past Member of the Board of Governors of the American Immigration Lawyers Association (AILA), the world’s largest professional organization of immigration lawyers. In 2002, he was the founder and Conference Chair of AILA’s Global Immigration Summit in New York City, the world’s largest conference of global immigration lawyers. He has written many articles on immigration law and is a frequently invited expert speaker on immigration topics at AILA National Conferences and other major national and international legal conferences. He is the Editor-in-Chief of many leading professional reference books for immigration lawyers including The Global Immigration Guide: A Country-by-Country Survey and The Global Immigration Guide: Crossing Borders for Business, AILA’s most comprehensive books on Global Immigration. He served as Editor-in-Chief of Immigration Options for Academics and Researchers (2005), AILA’s leading Expert Occupational Handbook on immigration issues in higher education. He is the author of Dr. Yes – Some Practical Strategies for the Diagnosis and Treatment of Immigrant Visa Cases of Health Care Professionals. Scott Borene attended Harvard University in Cambridge, Massachusetts as a National Merit Scholar. After graduation from Harvard, he attended William Mitchell Law School in Minnesota. Scott Borene has more than 30 years of experience helping employers obtain work visas for key international talent. Scott Borene can be reached at sborene@borene.com.

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