The United States–Mexico–Canada Agreement (USMCA, formerly NAFTA) is a multi-faceted treaty among Mexico, Canada and the U.S. In order to facilitate trade and address business concerns among the member nations, USMCA provides for certain nonimmigrant benefits and carves out a “special” nonimmigrant classification for professionals who are citizens of either Mexico or Canada to enter the U.S. to engage in professional employment. Generally, USMCA provides for the entry of business people from Canada and Mexico under five temporary categories: B-1, E-1, H-1, L-1 and TN status. Although all three nations are equal members under USMCA, the immigration benefits are slanted more positively towards Canadian nationals than toward nationals of Mexico.

The Canadian side of USMCA

USMCA replaces the prior bilateral agreement between the U.S. and Canada (the U.S.-Canada Free Trade Agreement). Under USMCA, Canadian citizens are not required to obtain visas from U.S. Consulates prior to entering the U.S. in the above listed nonimmigrant categories, with the exception of the E-1 classifications.

Processing of L-1 petitions is also different under USMCA. Rather than filing L-1 nonimmigrant petitions for Canadian citizen beneficiaries with the appropriate U.S. Citizenship and Immigration Services (USCIS) Service Centers, L-1 petitions can be processed at certain land ports of entry and at Canadian airports that have U.S. Customs and Border Protection (CBP) Pre-Flight Inspection offices. The L-1 petition is prepared as if it would be submitted through a USCIS Service Center with all required documentation and fees attached. However, the beneficiary presents the L-1 petition at the U.S./Canada border or at a CBP Pre-Flight office for adjudication. If the petition is approved, s/he will be issued a Form I-94, which is valid to the end of the requested petition date, usually 36 months.

The petition itself is then transferred to the Northern Service Center, where it is processed and an official petition approval notice is then mailed to the Petitioner. Pre-flight and border L-1 visa petitions allow for the transfer of qualified employees into the U.S. without waiting for prior adjudication. The implementation of USMCA now requires L-1 visa petitions to be submitted only at Class A ports of entry located on the U.S./Canada border or at a U.S. Pre-Flight Inspection office in Canada. Under the U.S.-Canada Free Trade agreement, L-1 visas could also be processed at any U.S. international airport. For Canadian citizens who will be traveling to the U.S. from Europe or Asia, the L-1 petition will need to be adjudicated prior to their entry at a USCIS Service Center and they will need to have the approval notice in hand upon entering the U.S. However, an actual visa stamp inside of the Canadian citizen’s passport is still not required.

USMCA also created the TN nonimmigrant classification. In order to apply for the TN classification, the Canadian citizen applicant must be coming to the U.S. to work in one of the professional occupations designated under USMCA. The list of occupations is provided below. A dependent of a TN nonimmigrant enters the U.S. as a TD nonimmigrant. While the TD classification is not limited to Canadian citizens, a visa would be required if the TD nonimmigrant is not visa exempt in his/her own right.

Applying for TN Classification – Optimized Ports

TN nonimmigrant classification is granted in three-year increments and applications are made at the U.S./Canada border port of entry (POE) office or at a CBP Pre-Flight office for adjudication. The applicant should allow at least two hours prior to a scheduled flight to complete CBP processing. Also, since the process may be time consuming, CBP suggests that applicants contact the CBP office in advance for any additional requirements.

More importantly, U.S. Customs and Border Patrol designated various ports of entry for optimized processing (see https://www.cbp.gov/travel/canadian-and-mexican-citizens/traveling-tn-or-l1-visa-canada). These designated ports of entry, including pre-flight inspection at an airport, aim to ensure more efficient processing for Canadians who are applying for their first TN under USMCA. First-time TN applicants may continue to go to any port of entry. However, while they are not required to go to one of the designated ports of entry, they are encouraged to do so in order to receive optimized processing. Additionally, it would be best to apply during normal business hours, and to avoid peak times if possible (for example, a Monday morning). It is also important to note that petitions may not be submitted ahead of time. Petitions submitted to a port of entry may only be adjudicated when the applicant is seeking entry into the United States. As such, applicants applying at a pre-flight inspection are strongly advised that they must allow for sufficient time for processing prior to the departure of their flight.

Professions under TN Status

There are specific professions listed in the regulations, which allow persons to apply to enter the U.S. in TN status. According to Appendix 1603.D1, the following professions are included under USMCA – the list also includes minimum requirements for each occupation:

Once the applicant is admitted as a TN nonimmigrant, s/he may be issued an arrival-departure card (Form I-94) that will be marked “Multiple Entry” and include the classification designation TN along with a validity date (usually three years from the date issued). This card is the only evidence that the person will have to show admission as a TN and the card will be used to travel back into the U.S. after any trips abroad. Even if the applicant is not issued a paper I-94 card, the passport admission stamp would document the admission in TN status, and the validity end date, and the I-94 admission record will be available on the Customs & Border Protection (CBP) website.

Required Documentation:

1. Canadian passport

2. Letter of support from a U.S. employer containing a general description of the employer, the specific responsibilities of the applicant, information regarding the applicant’s qualifications, and information regarding remuneration (we recommend that your standard job offer letter not be submitted).

3. Originals or notarized copies of educational degrees and/or copies of experience letters confirming the qualifications of the employee. Such evidence must establish that the applicant meets the minimum requirements as set forth in the Appendix 1603.D.1 (above). Also, an updated resume should be presented, and

4. Application Fee: $50 (U.S.) plus a $6.00 fee for each form I-94. Cash or Credit Cards are generally accepted. A check may be accepted, but check with the applicable office beforehand.
TN Dependents

A Canadian or non-Canadian spouse and unmarried minor child(ren) of a TN nonimmigrant is/are allowed entry into the U.S. as a TD nonimmigrant for the same length of stay as the principal TN applicant.

Dependents traveling with the TN applicant will be admitted with the applicant at no additional fee other than the $6.00 per I-94 fee. For Canadian citizen dependents, a Canadian passport is required as well as evidence of the relationship to the TN applicant (i.e., copy of marriage certificate, copy of child(ren)’s birth certificate(s), etc.). For non-Canadian citizen dependents, a visa stamp may be required in their passports. If required, the visa stamp must be obtained at a U.S. Consulate after the TN application has been granted and before the family member(s) attempt(s) to enter the U.S.

Canadian citizens or otherwise visa-exempt dependents traveling to the U.S. after the TN applicant has entered will need to carry proof of their relationship to the TN nonimmigrant and evidence that the TN holder was admitted to the U.S. in that classification (copy of Form I-94). Again, a visa may be required for those who are not citizens of Canada.

TD nonimmigrants will also be issued an arrival-departure card (Form I-94) marked as “Multiple Entry”and including their designation under the TD classification with the same validity dates as the principal applicant. TN dependents are not authorized to work in the U.S., but may attend school.
The Mexican Side of USMCA

Qualified Mexican professionals may apply for a TN visa stamp directly at a U.S. Consulate in Mexico.¹  First, they need to schedule an appointment with the TN/TD Consular Officer and at the interview submit a standard application for a non-immigrant visa, along with their Mexican passport, a copy of their qualifying educational documents, employment verification letters (if required), a letter from the prospective employer describing their proposed job duties and qualifications, and a filing fee of $100. Similar to the Canadian TN classification, a Mexican TN may be admitted for up to three years at a time with extensions available in three year increments. Dependents of the Mexican TN professional are also eligible to apply for a TD visa at a U.S. Consulate with evidence of their relationship to the TN applicant (i.e., birth certificate or marriage certificate). TD dependents will be issued a TD visa stamp and an I-94 with the same validity dates as the principal applicant upon entry to the U.S.  Like their Canadian counterparts, TD dependents are not authorized to work in the U.S., but may attend school.
Please contact our office for assistance in processing a TN visa application or extension of stay.

[1] Please note that while there is no requirement that Mexican nationals/citizens apply for a TN at a U.S. Consulate in Mexico, it may be advisable to apply at such consulates as they will be more aware of the TN applications for Mexican nationals and will set up procedures specifically for these types of applications.  [return]

*Management consultants provide services which are directed toward improving the managerial, operating, and economic performance of public and private entities by analyzing and resolving strategic and operating problems and thereby improving the entity’s goals, objectives, policies, strategies, administration, organization, and operation. Management consultants are usually independent contractors or employees of consulting firms under contracts to U.S. entities. They may be salaried employees of the U.S. entities to which they are providing services only when they are not assuming existing positions or filling newly created positions. As a salaried employee of such a U.S. entity, they may only fill supernumerary temporary positions. On the other hand, if the employer is a U.S. management consulting firm, the employee may be coming temporarily to fill a permanent position. Canadian or Mexican citizens may qualify as management consultants by holding a Baccalaureate or Licenciatura degree or by having five years of experience in a specialty related to the consulting agreement.

DISCLAIMER: This information is intended for clients of Jackson & Hertogs only. This is not intended to provide legal advice to non-clients of this firm. Nor will we respond to inquiries from non-clients. You should seek your own legal counsel in these matters.