TN Visas Remain Under NAFTA Replacement

Snell & Willmer, October 2018

Despite rumors that the TN visa category would be eliminated when the North America Free Trade Agreement (“NAFTA”) was replaced, the new US-Mexico-Canada Agreement (“USMCA”) appears to preserve the status quo. Consensus over the replacement trade agreement was announced on the evening of September 30, 2018. Notably, the text of USMCA’s Chapter 16 – granting temporary entry for certain Canadian and Mexican business professionals and the right to engage in business activities at the professional level – remains essentially unchanged from the original NAFTA text.

While all three countries are required to ratify the Agreement, U.S. employers seeking to continue to hire professional Canadian and Mexican employees in an expedited and cost-effective manner may view the consensus as a big win. Moreover, it could allow employers with current TN professionals, and the employees themselves, to breath a collective sigh of relief that the visa category may still be available under the finalized USMCA.

NAFTA and the TN Visa
Generally, a citizen of a foreign country who wishes to enter and work in the United States is required to first obtain a visa. In 1992, the United States, Canada, and Mexico entered into NAFTA, which provides, among other things, for expedited temporary admission under the nonimmigrant NAFTA Professional (TN) category of business persons in selected professions from each country, and the ability to engage in employment within those professions. The professions are listed in Appendix 1603.D, see here, which include accountants, engineers, management consultants, social workers, medical professionals, scientists and teachers. See 8 CFR § 214.6. Applicants may be admitted to the United States in TN status for a period of time required by the employer, up to a maximum initial period of three years.

Advantages to the TN Visa
Unlike other visa categories, the TN category provides employees and employers alike with a lot of flexibility provided the purpose of the stay is temporary. The principal alternative to the TN category for employers looking to hire Canadian and Mexican professionals on a temporary basis is the H-1B nonimmigrant category. The big advantages of the TN visa over the H-1B visa include the following:

• The six-year limit on stay for H-1B nonimmigrants does not apply to the TN category. Instead, TN professionals may receive extensions of stay in increments of up to three years with no outside limits on the total period of stay.
• Qualified Canadian and Mexican professionals who already completed six years in the H-1B or L nonimmigrant category may immediately apply for the TN category and do not have to fulfill the one-year abroad requirement imposed on H-1B nonimmigrants.
• There is no annual ceiling on the admission of Canadian and Mexican TN professionals, while the H-1B category has an annual cap. The H-1B annual cap is generally quickly reached, precluding approval of new H-1B petitions for the remainder of the year. For example, on April 6, 2018, USICS announced that it had hit the cap for H-1B petitions for fiscal year 2019 – four days after the first day it accepted filings.

Perhaps one of the most lauded qualities of the TN visa is the procedural advantages when seeking to obtain the visa. Unlike the H-1B visa, employers do not have to submit a petition with U.S. Citizenship and Immigration Services (“USCIS”) and be subject to processing delays for TV Canadians they want to hire. Instead, Canadian citizens may present their application to a NAFTA officer at a land crossing on the border, or at one of the NAFTA preclearance stations located in various Canadian airports prior to getting on the flight and departing for the United States.

While  Mexican TN applicants cannot simply  show up at a border crossing to get their TN visa, they do not have to submit their petitions to USCIS. Instead, Mexican nationals seeking initial TN status may apply directly to a U.S. consulate. Notably, both Canadian and Mexican TN applicants may submit applications to USCIS and wait for the agency to adjudicate their petitions.

USMCA and TN Visa Future
In May 2017, the Trump Administration announced its intention to renegotiate NAFTA. The Administration targeted the trade of goods aspect of NAFTA but did not directly take aim at the trade in services. Yet many saw the renegotiation, and the President’s Buy American and Hire American Executive Order seeking the rigorous enforcement of immigration laws, seehere, as the end of the TN category under any new trade agreement. USMCA keeps much of the same TN category language of NAFTA. See USMCA here; see NAFTA here.

So what happens next?

While consensus was reached, USMCA still needs to be approved. President Trump, Prime Minister Trudeau, and President Peña Nieto have to sign the Agreement – which they purportedly plan to do before President Peña Nieto leaves office at the end of November possibly at the G20 summit in Buenos Aires, Argentina.

The countries would then need to ratify the Agreement. In the U.S., it is unlikely Congress will review USMCA before 2019. Nonetheless, both Republicans and Democrats have supported a trilateral agreement. Notably, Senate Minority Leader Chuck Schumer praised President Trump for renegotiating part of the deal but noted that Congress would need to consider implementation measures for some labor provisions and access to the dairy industry. See here. Equally, incoming Mexican President Andres Manuel Lopez Obrador has stated he would not oppose the deal, see here, and Prime Minister Trudeau has already pledged compensation for Canadian dairy farmers impacted by the deal in an effort to support it. See here. So, for now, the TN category remains.