Labor Immigration Law

USCIS has announced that the maximum period of time a TN visa holder can remain in the U.S. from one (1) year to three (3) years.  The TN initial period is now equal to the three (3) year initial period of admission granted to H-1B holders.

About the TN Visa

The TN nonimmigrant classification is visa category available to eligible Mexicans and Canadians ith at least a bachelor’s degree or appropriate professional credentials who work in certain qualified fields pursuant to the North American Free Trade Agreement (NAFTA). Qualified professions identified within NAFTA include, but are not limited to, accountants, engineers, attorneys, pharmacists, scientists, and teachers.  There is no annual cap for the TN visa and during fiscal year 2006, there were a total of 74,098 TN admissions into the U.S.

About the Three-year Extension

This improvement to the TN nonimmigrant category was initially announced by Homeland Security Secretary Michael Chertoff and Department of Commerce Secretary Carlos Gutierrez on Aug. 10, 2007 and we wrote about the proposed rule in May.

One of the biggest criticisms of the TN visa’s one (1) year period was the continuing need to travel in and out of the U.S. to obtain extensions.  This has caused a great deal of lost productivity and inconvenience for employers and employees alike.  This final rule will ease administrative burdens and costs on TN workers. It will also benefit U.S. employers by increasing the amount of time TN nonimmigrants will be able to work for them before having to seek an extension of status. Spouses and unmarried minor children of TN nonimmigrants in their corresponding nonimmigrant classifications will also benefit from the new regulation.

The USCIS announced yesterday that it is publishing a Notice of Proposed Rulemaking (NPRM) to increase the maximum amount of time a TN visa holder can remain in the U.S. before seeking readmission or extension of stay from one year to three years. The goal behind the proposed rule is to provide TN visa holders similar visa terms as other skilled worker visas, such as H-1B.

Under the current regulations, TN visa holders must seek extensions or readmission every year. While in many circumstances such extension or readmission is without issues, TN visa holders often complain of the cumbersome yearly readmission requirements to which H-1B or L-1 visa holders are not subject. The new rule seeks to address these concerns and provide more certainty and uniformity among skilled professional visa categories.

The NPRM, once implemented as a final rule, will provide a number of benefits to all stakeholders. TN visa holders will not have to travel outside of the U.S. or seek extension every year thus saving money and time. U.S. employers will have greater certainty that TN beneficiaries will be allowed longer terms. Finally, the USCIS will have a reduced work load due to the decreased number of TN visa extensions.

Update: an advance copy of the proposed rule can be found here.

About the TN Visa. Canadian and Mexican citizens seeking temporary entry to the United States as professionals may come into the country as TN nonimmigrants under the North American Free Trade Agreement (NAFTA). TN status is available to Canadian and Mexican citizens with a minimum of a bachelor’s degree, or appropriate professional credentials, who work in professions listed in Appendix 1603.D.1 to Annex 1603 of the NAFTA and under DHS regulations at 8 CFR 214.6(c). Eligible TN professions include, but are not limited to, accountants, engineers, attorneys, pharmacists, scientists, and teachers.