Many immigrants from Mexico and Canada have been allowed to work in the United States as professionals. This opportunity is given by obtaining a TN nonimmigrant visa. This article will explain how Mexican and Canadian citizens working as professionals can get TN status and come and continue working within their professions in the United States.
What is a TN Visa?
Have you heard about NAFTA professionals? If you haven’t, let us explain what NAFTA is first. The North American Free Trade Agreement NAFTA is created for special trade and economic relationships between the United States, Canada, and Mexico.
Based on this agreement, a TN visa is designed to allow certain professionals from Canada and Mexico – NAFTA professionals, to work in the United States. Of course, there are some requirements that a citizen from these countries has to meet to be eligible to apply for a TN nonimmigrant visa, but it is important to note that it allows you to engage in business activities at a professional level.
What Are the NAFTA Professions?
NFTA professions for Canadian and Mexican citizens can be divided into three groups:
- Computer Systems Analyst
- Hotel Manager
- Management Consultant
- Industrial Designers
- Medical/ Allied Professionals
- Medical Laboratory Technologist
- Registered Nurse
- Scientist Professionals
- University and College Teachers
- Research Assistant, etc.
The complete list of NAFTA professions you can find here.
Who is eligible for a TN visa?
To be eligible to obtain a TN visa, there are several requirements that you need to meet.
1. Coming from Canada and Mexico
It’s reserved only for Canadian and Mexican citizens who intend to engage in business activities in the U.S. as professionals full-time or on a part-time basis. As we mentioned earlier, this TN visa is designed explicitly for Mexican and Canadian professionals. This means that immigrants coming from other countries and meeting some other requirements still cannot apply for it under any circumstances.
2. Not all professions are admissible:
When looking at TN visa requirements, you should first look at the NAFTA list, which comprises professions that can be granted the TN visa. Some of those, we mentioned earlier in the text, and you can also follow the provided links to learn more on how to obtain a TN visa as a NAFTA professional.
3. Having a valid job offer
The existing valid job offer from a U.S. employer awaiting for you who will be your sponsor is required. To come to the United States to work as a professional on a TN visa, you have to have an arranged job position in advance. In other words, using this visa to look for a job after you come to the United States is not an option.
4. Holding the required degree
You have to hold the required degree, licenses, and/or experience to perform the offered job.
5. Demonstrating intention not to stay in the United States
There needs to be a clear intention to depart the United States on completion of your authorized stay.
How long can you stay on a TN visa?
Current laws and regulations declare that as NAFTA professional you can be granted a TN visa for periods of up to three years. However, U.S. immigration officials can decide to allow you a shorter period of stay, focusing on how long your position in the United States will last.
Still, as an applicant for a TN visa, you have to establish “nonimmigrant intent.” This means that you are required to convince the U.S. immigration authorities that you do not have intentions to stay in the U.S. permanently and that you will eventually return to your home country.
What are the “90 Day Rule” means for TN Visa Holders
Since the TN visa is not a “dual intent” visa, you’re declaring an intention to leave before your visa expires when you enter the United States.
If the Customs and Border Protection (CBP) officers find out that you had lied when you entered the country, your green card application could be denied. To avoid that, you need to understand the period of time called the “90-day rule” used by immigration officers to determine whether the applicant was honest about their original reasons for coming to the United States.
How the 90-day rule works
Suppose you apply for a green card within the first 90 days of entering the United States. In that case, the U.S. government will presume that you “willfully misrepresented” your reason for coming — in other words, that you went to the United States intending to immigrate rather than to work temporarily under the terms of a TN visa.
But, if you apply for a green card more than 90 days after entering the United States, the officers will presume that your circumstances or intentions changed and that you did not “willfully misrepresent” your reasons for coming. Usually, they will allow the green card application to proceed.
How to calculate 90 days
To check when the 90-day rule would apply, you should look at the I-94 travel record (the “Form I-94 Arrival/Departure Record”) and find the date of your most recent entry into the United States. On this date, you then add 90 days.
How to Change Your Status from a TN Visa to a Marriage Green Card
Your pathway from a TN visa holder to a green card will depend on whether your spouse is a green card holder or a U.S. citizen. Also, it depends on how you will apply for it: via Adjustment of Status (AOS) or consular processing.
The process called “Adjustment of Status” is used by most applicants. The USCIS will handle your application while you are in the United States. This allows you to apply for a work permit, so if your TN nonimmigrant visa expires, you may keep working lawfully. However, as an AOS applicant, you have to be careful to avoid triggering the 90-day rule.
On the other side, the process called “Consular processing” is used by most applicants who are not at the time in the United States. In this case, a U.S. consulate or embassy in your home country will handle your visa application. It means you’ll have to return to your home country for a medical examination and consular interview.
Case 1: Your spouse is a U.S. citizen
As we mentioned above, in this case, you will apply for the green card using AOS. You and your spouse will file two forms:
- Your spouse will file the family sponsorship form (Form I-130- the “Petition for Alien Relative”)
- You are required to file the green card application (Form I-485- “Application to Register Permanent Residence or Adjust Status”)
Usually, both of you will file these forms at the same time.
Case 2: Your spouse is a U.S. citizen, and you use consular processing
Applying for a green card via consular processing is typically used by applicants residing outside the United States. But, it may also be initiated from within the country. Still, in that case, you would have to return to your home country for an interview and medical examination.
Since you will leave the country and won’t trigger the 90-day rule, this approach is the safest way to shift from a TN status to a green card.
But keep in mind that as a consular processing applicant, you can’t remain in the United States or gain employment authorization if your TN visa expires before you obtain the green card.
The application process is the same as the one used by the spouses of U.S. citizens living abroad:
- Filing the family sponsorship form (Form I-130- “Petition for Alien Relative”) with USCIS.
- Upon the approval of the I-130 form, your case will be transferred to the National Visa Center (NVC), so you have to pay fees, file the DS-260, and mail in your supporting documents.
- Consulate or embassy in your home country will receive your documents. You will get a time and date for your consular interview. Bear in mind that you will have to bring your medical examination results when coming to the interview.
Typically, the whole process takes 11-17 months.
If you do not get your application’s approval during your consular interview, you may receive a request for evidence (RFE) or a follow-up interview.
Case 3: Your spouse is a green card holder
If your spouse holds a green card, you can file your TN visa application either through AOS or consular processing. Still, you’ll need to wait for a green card to become available for you.
Sometimes you need to leave the United States and complete your application using consular processing. However, for both case scenarios, you’ll first need to file the family sponsorship form or Form I-130. Upon the approval of Form I-130, you must wait for a visa number showing that a green card is available to you.
If it becomes available for you before the TN visa expires, you may stay and apply for a green card using AOS. Also, using the consular processing, you can apply from within the United States, but if your TN visa expires before your green approval, you’ll have to leave the United States.
If a green card becomes available after your TN nonimmigrant visa expires, you’ll have to return to the home country to complete your green card application through consular processing.
To apply via AOS, you have to file Form I-485 (“Application to Register Permanent Residence or Adjust Status). You will be able to remain in the United States and get a work permit until you wait, typically 29-38 months.
Applying for a TN visa status through consular processing requires you to file the DS-260 online. If you apply from within the United States, you’ll have to return to your home country for a medical exam and consular interview. The whole process typically takes 23-32 months, and you won’t be able to remain in the United States if your TN visa expires before your green card is approved.
If you begin an application through AOS, you’ll have to be careful not to trigger the 90-day rule, but you’ll be able to remain in the United States and request permission to work even after your TN visa expires. If you use consular processing, you’ll avoid any problems with the 90-day rule, but you’ll have to leave the country before your TN visa expires.
How Our Immigration Lawyers May Help
Herman Legal Group is a northern border law firm with offices in 11 cities across the United States, including the offices in Cleveland, Detroit, and Buffalo. Having extensive experience in immigration law practice, our lawyers may help you manage the immigration process and maximize your success opportunity. If you intend to apply for a TN nonimmigrant visa but find this process complicated, be free to contact us.
Our immigration attorneys help you with your TN visa application, but also will answer all legal questions related to your application, advise you on strategies and paths that you should take, as well as whether your specific situation might affect your green card application and ways on how to handle it.
Having a reliable immigration attorney is a key to meet flow easily through the process, avoiding taking wrong steps that can cost a chance to come to the United States.