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Comparing & Contrasting the TN & H-1B
Categories for Canadians


By John C. Valdez, Attorney at Fontes Figueroa Law Group, serving Orange County, Riverside County, and Surrounding Areas

For immigration purposes, Canadians struck it rich when the United States and Canada entered into the North American Free Trade Agreement, which was signed into law on December 8, 1993. NAFTA makes it easier for Canadians to invest, trade, and provide professional services in the United States. The four immigration categories that it affects are temporary visitors for business (B-1), Treaty Traders and Investors (E-2), Intra-company transferees (L-1), and professional workers (TN). This article discusses the TN category for Canadians,1 which is unique in the world and a wonderful tool for U.S. companies to use to recruit high-quality workers from across the border. While the TN is very similar to the H-1B professional classification, the TN has the following advantages:

Availability

Many professionals from all over the world have trouble coming to the United States because the main professional category, the H-1B, is numerically limited. The immigration laws limit new H-1B visas to 65,000. An additional 20,000 H-1B visas are available for those with an advanced degree from a United States institution of higher education. An advanced degree is defined as a Masters degree or higher. The problem with these numerical limitations is that there are many more applicants than visas under the cap. Indeed, after the first week of eligibility to apply for the visa last year, the government reported the receipt of 163,000 H-1B petitions, and 31,200 of those were for individuals with an advanced degree. Therefore, fewer than 50% of H-1B petitions were approved. Moreover, no more H-1B visas will be available until next fiscal year, which begins on October 1, 2009.

People are permitted to apply for TN classification at any time, since there is no limitation on TN issuances. The list of professional TN occupations can be found in NAFTA’s Appendix 1603.D.1. There are more than 60 TN occupations, including the following:

  • Accountants
  • Architects
  • Computer Systems Analysts
  • Graphic Designers
  • Hotel Managers
  • Mathematicians
  • Research Assistants
  • Scientific Technicians
  • Dentists
  • Pharmacists
  • Registered Nurses
  • Biologists
  • College and University Teachers

Procedures & Costs

H-1B applicants must file a petition with the United States Citizenship & Immigration Services (USCIS) before they may apply for a nonimmigrant H-1B visa at a U.S. Consulate. This process can be somewhat time consuming and very costly. Most H-1B employers are required to pay the following fees for this process: $325 for the general filing fee, $750 or $1,500 (depending on the size of the company) for an education and training fee, and $500 for a fraud detection fee. In addition, many employers pay $1,225 for premium processing, a service that can reduce the petition process from three or four months to 15 days.

Canadian TN applicants need not file a petition with the USCIS. They also need not apply for a visa at a U.S. Consulate (Canadians seeking TN classification are visa exempt). Instead, they are permitted to apply at the border for TN classification, saving much time and costs.

Duration of Stay in the United States

H-1B visa holders are generally limited to a six year stay in the United States. After six years, they must change their status, fall under a number of possible exemptions to the six year rule, or leave the U.S. for a period of one year.2

TN holders used to be granted status in one year increments, but on October 14, 2008, the USCIS announced that TN nonimmigrants may now be granted status in three year increments. So long as they can show that they are not intending to live in the United States permanently, they may be granted additional time in TN status. Thus, TN workers have been allowed to remain in the United States for well-beyond six years.

Compliance Requirements

The H-1B employment arrangement is heavily regulated. There are, among many requirements, prevailing and actual wage requirements, job posting notice requirements, and a requirement to pay return transportation costs in the event an employer terminates an employee before his or her H-1B status expires. There are also numerous recordkeeping requirements.

The TN classification does not require an employer to satisfy any particular wage requirements or sign any attestations about obligations such as providing notices, guaranteeing return transportation, or recordkeeping.

Immigrant Intent

One important advantage to H-1B classification over the TN is that the H-1B employee is not required to establish “nonimmigrant intent,” which means that the U.S. government does not care if he or she wishes to remain in the U.S. permanently. In contrast, the TN applicant must show country ties to Canada and establish to the government’s satisfaction the intent to return to Canada after TN classification ends.

Conclusion

The TN classification is good for U.S. businesses and Canadian job seekers. Some professional occupations under the TN classification are generally not even available under the H-1B category, such as most Registered Nursing positions. There are, however, instances when the H-1B category or another classification is better suited than the TN for a professional. At Fontes Figueroa Law Group, our immigration lawyers are very experienced with business immigration matters. Please contact us if you have any questions about the TN or any other immigration category.

Footnotes:

1) There is also a Mexican TN category, which is very similar to the Canadian TN. Unlike Canadians, Mexican nationals outside of the U.S. must first obtain a visa before entering the U.S. in TN classification.

2) One way an H-1B employer can extend the six year period for H-1B classification is to begin the permanent residence process by filing a labor certification or immigrant visa petition for the employee before he or she begins the sixth year of H-1B time.