H1B Status x TN Status!

Among the various types of nonimmigrant visas available for professional workers, the H-1B and the TN visas are the most prominent ones.

Both visas are designed for high-skilled professionals seeking temporary entry into the USA for professional purposes.

But, depending on the circumstances, you get to opt between the most advantageous one or you might be eligible for one but not the other. Understanding the differences between TN and H-1B visas is crucial.

H-1B Visa Status

The H-1B visa is the most sought-after work visa among foreign professionals, consisting of a nonimmigrant, employer-sponsored visa, that allows companies to hire professional workers in specialty occupations that normally require a bachelor’s degree or equivalent as a minimum requirement.

TN Visa Status

TN stands for “Trade NAFTA ”, and it is a visa designed for specific workers from Canada and Mexico, to temporarily enter the USA and work in specific job categories, approved by the NAFTA list.

This visa status is available for accountants, engineers, lawyers, pharmacists, scientists, teachers, and others. Eligible Canadian and Mexican citizens must hold a bachelor’s or higher degree in specific fields, listed here.

TN visa holders are known as NAFTA professionals.

Application Process of  TN Visa

The application process is a bit different according to the citizenship of the employee.

Mexican citizens should first apply for a TN visa at a U.S. embassy or consulate in Mexico. Once the Mexican citizen is approved for a TN visa, they may apply for admission in the US.

Canadian citizens are not required to apply for a TN visa at a US consulate, provided that they are able to establish eligibility for TN status at the time you seek admission to the United States. Nonetheless, a visa can be issued to qualified Canadian TN visa applicants upon request.

A quick remark: a Canadian citizen living in a third country with a non-Canadian spouse and/or children, who is planning to enter the US as a NAFTA professional, accompanied by their family member, will need a TN visa in order for their family member to be eligible to apply for a TD nonimmigrant visa.

H-1B and TN Visa: How are they similar? 

There are some shared similarities between the two visa statuses.

  • Both H-1B and TN are non-immigrant temporary visas.
  • Designed for qualified professionals in specialty occupations
  • Both visas don’t allow self-employment. An employer-employee relationship is mandatory

Despite their few similarities, the TN visa differs from the H1B visa in many aspects.

H-1B and TN Visa: Wow are they different?

H-1B and TN Visa: how are they different?

1#Personal Requirements

Any citizen from any country can benefit from the H-1B visa, provided that the professional requirements are met.

In its turn, only Canadian and Mexican citizens are eligible for the TN visa status, but it is not available to land immigrants or permanent residents.

2#Professional requirements

H-1B Visa requires at least a bachelor’s degree, and the job functions must be so complex as to justify the need for specific knowledge. However, there is no limit to the field of study. Any bachelor’s or higher degree is eligible.

In contrast, the TN status restricts eligibility to a list of professions, which also require a bachelor’s degree or higher.

The professions listed in NAFTA are generic and may not reflect an employer’s specific job title. Therefore, it is critical to evaluate a position’s job duties to determine whether or not the position qualifies as a profession within NAFTA. Count on an immigration attorney to help you assess your position qualifies.

3#Dual intent

Dual intent is defined by the possibility of having immigrant intent, e.g., of seeking a green card while holding a nonimmigrant status.

The intention to seek permanent residency does not preclude them from becoming temporary residents and does not harm their nonimmigrant status.

The H-B1 is a dual intent visa, which allows the beneficiary to enter the USA as a nonimmigrant and immediately register for a Green card and seek permanent residence.

The TN visa on the other hand does not allow dual intent. A person under the TN status cannot pursue permanent residence and a TN visa holder who chooses to apply for a green card might jeopardize their status.

4#Annual Cap 

One advantage of the TN visa over the H-b1 visa is the annual cap.

The H-1B visa has an annual limit (cap) of 65,000 new visas each fiscal year, with an additional 20,000 visas set aside for beneficiaries with a master’s degree or higher from a U.S. institution of higher education.

On the other hand, the TN visa has no numerical limitations, allowing employers to fill TN petitions on behalf of their prospective employees throughout the year, without fearing that there might not be any more visas available.

5#Period of stay

Although nonimmigrant workers are allowed in the USA until the date stamped on their I-94 form, both H-1B and TN beneficiaries can be admitted to the US for a period of up to three years.

To extend a TN visa:

  • The employer must file Form I-129 on behalf of the beneficiary employee, or
  • The beneficiary can leave the country and reapply for the TN visa status

There is no limit for how many TN Visa extensions a beneficiary can get, which makes the TN visa indefinitely renewable.

For the H-1B visa, one 3 year extension is allowed. To extend the visa for longer than the statutory 6 years, immigrant workers can benefit from the provisions of the American Competitiveness in the 21st Century Act (AC21).

Provided that the extension process is initiated at least 365 days before your six-year expiration date, you can request annual one-year extensions with the AC21.

If the H-1B worker is waiting for a decision on an ongoing green card process, they can stay in the country.

6#Portability 

By portability, we mean the provision that allows a nonimmigrant worker to change employers while preserving his or her legal status.

For H-1B visa holders, it is possible to accept a job offer for a different employer, provided that the new employer files a Form I-129 petition, accompanied by a certified LCA, before the date of expiration of the worker’s authorized period of stay.

The H-1B employer can accept the new job even though the new petition has not yet been adjudicated, without being “out of status”.

Unlike the H-1B visa, the TN visa does not allow its beneficiaries to start working for a new employer before being authorized by USCIS.

To change employers, a TN beneficiary can either leave the USA and apply for a new TN Visa or have the new employer file an I-129 form as if it was an extension.

7#Work conditions

A TN visa holder is authorized only for employment described in the appointment letter and work only for the employer whose appointment letter accompanied the TN petition or was presented at the port of entry.

H-1B workers are also restrained to perform the work described in their LCA, but, on the other hand, are allowed to work for more than one employer.

8#Location change

In case of a job location change, the TN employer does not need to take any action, provided that the duties at the new job location are unchanged and for the same employer.

For H-1B workers, if the new job location is outside the statistical metropolitan area of the original job location, a new Labor condition application certification and an amended H1B petition are required.

9#Prevailing Wage requirement

The prevailing wage is defined as the average wage paid to similarly employed workers in a specific occupation in the area of intended employment and is a requirement of the H-1B visa.

Employers interested in hiring with H-1B must pay the prevailing wage to their H-1B workers, according to their worksite location, as specified in the labor condition application.

For TN visas, the prevailing wage is not a requirement, which can be a disadvantage for foreign workers.

10#Family of the holder

Fortunately, both the H1B visa and the TN visa allow its holder to bring their family over to the USA.

An H-1B worker’s spouse and unmarried children under 21 are allowed to accompany the worker to the US under an H-4 visa status.

The H-4 visa generally does not allow its holder to work. But, if the H-1B visa holder is in the process of adjustment of status – applying for a green card, and is the beneficiary of an approved I-140 immigrant petition or has received an extension of H-1B status beyond the six-year limit under the AC21 statute, the H-4 dependent spouse is eligible to apply for work authorization.

The TN visa also allows foreign workers to bring their spouse and children under 21 to the US, who will be granted a TD nonimmigrant status. They are not allowed to work during their period in the United States, but are allowed to study.

11#Visa application fee

While the TN visa requires the payment of a $160 filing fee, the H-1b Visa is a bit more expensive, since it requires the following fees, to be paid by the prospect employer:

  • Registration Fee: $10
  • Basic visa filing fee (I-129 form): $460
  • Public Law 114-113 Fee: $4000
  • Premium Processing (optional) $2,500
  • USCIS Fraud prevention detection Fee: $500
  • ACWIA Education and Training Fee: $750 if fewer than 25 employees or $1500 if more than 25 employees

Changing from a TN visa to an H-1B visa

There is no special path to transition from TN to the H-1B visa. Changing from TN status to H-1B status will require the same process for a new H-1B.

The sponsoring employer must file a labor condition application and get it certified by the Department of Labor, fill a Form I-129, and enter the H-1B lottery – and be selected.

Ideally, the worker seeking the H-1B visa should submit the application through the same employer that sponsors the TN visa. In case the application is not selected at the lottery, the worker can continue to work under the TN visa status.

Which one is better?

Which visa is better, the TN or the H-1B? The answer to this question will vary depending on the circumstances.

The TN visa has the advantage of not having numerical limitations and is a lot cheaper compared to the H-1B. However, it is limited to canadian citizens and mexican citizens, whereas the H-1B has no citizenship requirements.

The TN visa also is restricted to the 63 NAFTA-approved occupations. In its turn, the H-1B requires a bacharelor’s or higher degree but does not restrict the field of expertise or profession, provided that the job is classified as a specialty occupation.

Prevailing wage requirements can also make the H-1B visa more beneficial when compared to TN visa status, as employers are required to pay minimum wage paid to laborers in this specific field or occupation, as set by a relevant government agency.

Finally, if the foreign worker has the intention of seeking permanent residence, they are allowed to do so under the H-1B status, whereas they cannot do so under the TN visa status.

How can we help?

Deciding which nonimmigrant visa category suits you best can be overwhelming. You need the steady hand of an experienced immigration lawyer to navigate the rough waters of U.S. immigration law.

The Herman Legal Group has over 25 years of experience in working with the U.S. Citizenship & Immigration Service. The team is friendly, professional, and wants to help. Leverage their experience for your case.

Schedule a personal consultation with Attorney Richard Herman by calling 1-800-808-4013 or 1-216-696-6170, or by booking online. Consultations can be conducted by zoom, skype, WhatsApp, facetime, or in-office.

 

 

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