Mexican And Canadian Professionals Under NAFTA

I. INTRODUCTION

The North American Free Trade Agreement entered between the United States and Canada created simplified visa processes to the US. There are four visa types which are covered under the NAFTA agreement:

• B–1 temporary visitors for business under section 101(a)(15)(B) of the Act
• E–1 or E–2 treaty traders and treaty investors under section 101(a)(15)(E) of the Act
• L–1 intracompany transferees under section 101(a)(15)(L) of the Act; and
• TN professional level employees under section 214(e) of the Act

The most common use of the NAFTA is in the form of TN visas which allows professionals from Mexico and Canada to enter the US and to work for US employers. Suffice it to say, that the most advantageous visa vehicle under NAFTA is the ability to obtain adjudication on any of the aforementioned visa categories at the port of entry. Said differently, Mexican and Canadian Citizens may obtain adjudication on a complex petition involving Treaty Investor, Treaty Trader, or an Intracompany Transferee by submitting the same at the port of entry able to adjudicate such visas directly.

This article shall focus on TN visas afforded to Mexican and Canadian professionals.

II. TN VISA REQUIREMENTS

Canada or Mexico professionals may receive TN visa designation and to enter the US to accept employment if the following requirements are fulfilled:

• Alien is a citizen of Mexico or Canada
• The position sought is on the NAFTA list
• The Mexican or Canadian professional received a part or full time job offer from a US employer; and
• The Mexican or Canadian professional is otherwise qualified to fill the particular position

1. Canadian Citizens

In most instances, Canadian citizens do not need to obtain a visa to receive the TN visa designation. As stated, Canadian professionals may avail themselves at the port of entry with the necessary documentation and receive the TN visa status. The TN visa status is evidenced by the issuance of an Arrival/Departure Record Form I–94 depicting the TN visa status. Spouses and children of Canadian Citizens who are also Canadian Citizens themselves may receive a TD visa at the same time the principal alien receives the TN visa designation. If the dependents are not Canadian Citizens, then the Canadian professional and his or her immediate dependents will require a visa issued at a US Consulate prior to entry into the US.

2. Mexican Citizens

Unlike their Canadian counterparts, Mexican citizens must apply for a TN visa at a US Consulate and be interviewed prior to entering the US. Alternatively, Mexican Citizens could also apply for a change of status if they are within the US before the US Citizenship and Immigration Service. Spouses and children of Mexican Citizens may receive a TD visa at the same time the principal alien receives the TN visa designation.

3. Position Classification and Minimum Requirements

One of the most critical requirements of TN visa applications is that the adjudication officers, whether at a US port of entry or at the USCIS, look closely as to whether the position classification sought conforms to one of those listed in Annex 1603, Appendix 1603.d.1. verbatim. In addition, they look to see if the alien possesses the minimum qualifications pursuant to the aforementioned document. In addition, the position description attached to such occupational classification must bear reasonable relevance.

4. Duration of Stay

TN visas are now issued up to a three year period. The Canadian or Mexican professional could request an extension of the status by applying before the USCIS, at a port of entry for Canadian Citizens or before a US Consulate for Mexican nationals.

5. Dual Intent Issues for TN & TD Visa Holders

TN visa status may present a tactical problem for certain Canadian or Mexican Citizens who find themselves desirous to remain in the US permanently by applying for an immigrant visa. This is because TN visas require the applicant to show that he or she does not intend to immigrate to the US. The problem is that this requirement is not stated in an outward expressive manner at the time of the visa application. In other words, many Canadian and Mexican nationals may not be even aware that they are so promising at the time of receiving the TN visa status. Hence, if such TN visa recipients proceed to apply for permanent residence while on TN visa status, they may face the prospect of being accused to have committed fraud at the time of obtaining the TN visa in the first place.

It is critical to remember that TN visa holders must know what they are promising at the time of receiving the TN visa. In addition, TN visa holders must change their status to H–1B visa prior to applying for permanent residence or another visa which allows dual intent (Such as L, O, or similar visa) prior to pursuing permanent residence in order to avoid complications at the time of the immigrant visa processing.

III. CONCLUSION

The North Atlantic Free Trade Agreement provides for simplified procedures for adjudication of certain nonimmigrant visa status, to wit, B, L, E and TN visas. Because Canadian citizens are eligible to have their applications adjudicated at the port of entry, they are able to literally able to carry their own applications concerning a complex investment opportunity into the Customs & Boarder Protection (CPB) office and walk out with a visa status within a short period of time. Furthermore, the Canadian Citizen gets to answer questions and interact with the adjudicating officer, a matter unavailable to any other nationality or visa application setting. Hence, visa categories under the NAFTA agreement may be a powerful immigration tool that may not be ignored.

Contact Us

The law firm of Shihab & Associates, Co., LPA has processed thousands of visas on behalf of clients worldwide and is experienced in the ins and outs of the NAFTA agreement. They have represented clients before the USCIS, US Consulates in Mexico as well before the port of entry. Contact the law firm of Shihab & Associates, Co., LPA at the office closest to you by e–mail or phone if you have a question regarding a TN visa or any other visa under the North Atlantic Free Trade Agreement.