Leaders from the US, Canada & Mexico are meeting in Canada today to discuss their concerns with NAFTA. The US has threatened to pull out of the NAFTA treaty if its terms are not met. If this happens, the TN visa category will be eliminated, and those in TN status will lose their authorization to live and work in the US. The TN is a work visa issued to Canadian and Mexican citizens in certain professional occupations. It is a favored visa category because it is relatively simple and quick to obtain. Employees can generally apply for them right at the border, whereas H-1B’s can take several months for processing. TN’s are not subject to any quota or cap; so, employers can apply for them any time during the year and request any start date (whereas initial H-1B’s are subject to a cap and lottery on April 1st every year, and the earliest initial start date an employer can request is October 1st). Further, TN’s are extendable indefinitely, whereas H-1B’s are generally limited to a 6-year total stay in the US.
This favored visa category is in jeopardy, however. Rather than completely pulling out of NAFTA, it may be more likely that various terms of the NAFTA treaty will be renegotiated. This could mean additional restrictions on TN eligibility and processing. The US recently issued a guidance reinterpreting who qualifies under the Economist TN category. For example, market analysts and financial analysts are now excluded from TN eligibility. As a result, many TN economist employees who have been easily obtaining and extending their TN’s are now facing troubles. If the NAFTA terms are renegotiated, there could be additional eligibility restrictions and exclusions. In addition, whereas currently, the TN category is extendable indefinitely (in theory at least), new terms could be negotiated putting a limit on the total duration an employee may be in TN status.
As a cautionary measure, employers should consider extending their TN employees’ status now (or soon), while the TN process is somewhat certain, and extensions are indefinite. In addition, employers should strongly consider applying for H-1B’s for their TN workers on April 1st, as part of this year’s H-1B lottery. This way, the employees’ work authorizations will not be affected by NAFTA’s existence and terms.
Please contact Berin S. Romagnolo with any questions.
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