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May 4, 2011

TN visa for Canadians

http://www.jewishjournal.com/blog/item/tn_visa_for_canadians_20110504/

The TN visa was created under the North American Free Trade Agreement between Canada, U.S. and Mexico.  Under this visa, a Canadian citizen may work in a professional occupation in the U.S. if:

1) He/she qualifies under the “Professionals Under the North American Free Trade Agreement” list;
2) the Canadian citizen possesses the specific criteria for that profession;
3) the employment position in the U.S. requires someone in that professional capacity and
4) the Canadian citizen is going to work for a U.S. employer.

Advantages of TN visas

There are several advantages to applying for a TN visa.  First, TN visas are valid for three years, whereas they were previously only valid for year at a time.  This means that the TN visa is valid for as long as an H-1B visa. Second, TN visas are easier to apply for, and to have approved, than other work visas such as the H-1B.  There are two ways to apply for a TN visa: 1) in person at a port of entry (POE) to the United States; or 2) by submitting an application to the USCIS while in the United States.

Should I apply at POE or through USCIS?

Between applying at a POE or through the USCIS, the better alternative is to apply at a POE.  First, the application fee is considerably lower if you apply in person.  The USCIS filing fee is over $300.00 while applying at a POE is less than $100.00.  Second, a decision to grant or to deny the visa is made immediately.  On the other hand, applying for a TN visa by mail to the USCIS may take a couple of months.  If you are denied a TN visa at the POE, you learn the decision for denial right away and you can attempt to correct it immediately or at least very soon.  If your TN visa is denied by the USCIS, it is much more difficult to try to obtain a favorable resolution.  Worse yet, you may be required to leave the United States during this time.

Other disadvantages of TN visas

One considerable disadvantage to a TN visa is that it applies to a very narrow group of professions, making most Canadians ineligible.  In fact, you must qualify within a profession on the TN professional occupations list [LINK] in order to be eligible for a TN visa.  Most of these professions require an advanced degree, or at least a bachelor’s degree in a particular area.  Some of these professions include: architect, accountant, engineer, graphic designer, lawyer, doctor, management consultant, dentist, pharmacist, and college teacher.  So a Canadian citizen with a bachelor’s degree (or even a Master’s degree) in sociology would not likely be eligible for a TN visa.

Another disadvantage is that the Canadian citizen must demonstrate to the CBP agent an intention to return to his/her home country upon the expiration of the visa.  This is not usually an issue when it is an applicant’s first TN visa.  But what if the applicant has already been in the U.S. on a TN visa for nine years?  How does one demonstrate his/her intent to return to Canada if he/she has been in the U.S. for nine years and is asking to stay for another three years?  The best way is to provide the CBP agent with documents showing that the applicant continues to maintain ties to Canada.  This may be done in the form of bank account statements, a provincial driver’s license, ownership of real estate, or having a spouse, children or other family living in Canada.  However, be aware that every CBP agent is different – with different moods and personalities.  One agent may deny a fourth TN visa while another may think nothing of it.  Always be prepared for a denial by having supporting documents to prove your intent to return to Canada.

Yet another disadvantage to a TN visa is that it is more difficult to apply for an employment-based green card.  The reason goes back to the “intent to return” rule.  If you apply for a U.S. green card while on a TN visa, this flies directly in the face of your stated intent to return to Canada.  There are ways to apply for an employment-based green card while on a TN visa, which I will probably outline in a future post.

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