• USCIS Increases Period of Stay for NAFTA Professionals from Canada and Mexico
  • November 1, 2008 | Author: Nelli Nikova
  • Law Firm: Bracewell & Giuliani LLP - Houston Office
  • On October 14, 2008, U.S. Citizenship and Immigration Services (USCIS) announced the publication of its new rule increasing the maximum period of time a Trade-NAFTA (TN) professional from Canada or Mexico may remain in the United States before seeking readmission or obtaining an extension of stay.  The rule extends both the initial period of admission and subsequent extensions of stay for qualified TN workers, and their spouses and children, from one to three years.

    The rule change, which brings the TN visa category time limits in line with the admission time framework for other nonimmigrant worker categories, such as H-1B professional workers, should ease the administrative burden on employers with covered TN employees (as well as those workers’ families) and enable employers to maintain a more stable and predictable workforce.

    The TN nonimmigrant classification allows qualified Canadian and Mexican citizens to seek temporary entry into the United States to engage in business activities at a professional level.  The classification was created pursuant to the 1993 North American Free Trade Agreement (NAFTA).  The TN nonimmigrant classification is available to eligible Mexicans and Canadians who:

    • Hold at least a bachelor’s degree or other appropriate professional credentials; and
    • Work in qualified fields, as defined in NAFTA, including, but not limited to, accountants, engineers, attorneys, pharmacists, scientists, computer systems analysts and teachers.

    Spouses and children of TN workers may be granted nonimmigrant status as a NAFTA dependent (TD) and may be admitted to the U.S., but may not work. 

    The USCIS does not impose an annual limit on the number of TN admissions and an individual may repeatedly enter the U.S. in TN status.  Statistics maintained by the Department of Homeland Security indicate that, including readmissions, there were more than 74,000 TN admissions for Fiscal Year 2006, the last year for which data is available.

    TN admissions requirements differ for Canadian and Mexican citizens.  Canadians are not required to apply for a visa with a U.S. consulate or file a petition with USCIS.  Rather, when requesting admission as a TN worker at a U.S. port-of entry, Canadian citizens must provide proof of citizenship and a letter from their prospective employer describing their professional capacity, purpose, length of stay, and educational qualifications.  The applicant may also need to provide credentials evaluations.  Once approved for entry by a U.S. Customs and Border Protection (CBP) Officer, an eligible Canadian citizen may now be admitted as a TN nonimmigrant with a Form I-94 Arrival/Departure Record providing TN status for up to three years, and allowing for multiple entries.

    In contrast, while Mexican citizens seeking TN nonimmigrant classification need not file a petition with the USCIS, they are nevertheless required to obtain a visa for entry into the United States.  Mexican citizens are advised by the USCIS to apply for a TN visa directly at a U.S. consulate in Mexico.  To obtain the visa, they must present proof of citizenship, along with a detailed employer’s letter, similar to that needed by Canadians. Moreover, as is true for Canadian citizens, Mexicans may need to provide credentials evaluations.

    Significantly, the new rule does not provide an automatic extension for current Canadian and Mexican TN workers.  Rather, they must obtain an extension or change of status before the expiration of their current authorized period of stay, or leave the United States. A Canadian or Mexican TN worker who departs the U.S. without submitting a new application will be readmitted only for the remainder of the authorized period on the original Form I-94.

    Employers and their TN workers should also be aware that the new USCIS rule in no way changes security requirements for TN nonimmigrants or their dependents.  According to the USCIS, “TN nonimmigrants present in the United States will still be subject to the same rules regarding removability/deportability and the same conditions of stay (other than the initial period of admission/one year extension of stay requirement) as they are under the current regulation.”

    Bottom Line
    In addition to the advantages of the new rule for employers and TN workers, the USCIS suggests that the expanded time limits for TN admissions will make the TN program “more attractive” to professionals who might otherwise be required to seek admission under the capped H-1B program.  Further, the USCIS anticipates that the new rule may “possibly” free up H-1B visa slots for other professional workers.  However, in light of the current, strict limits on H-1B visas, employers may want to maximize the availability of their TN workers by ensuring that they:  (1) do not inadvertently let their current Form I-94 expire; (2) promptly submit new applications; and (3) take any other steps necessary to avail themselves of the extended stay periods allowed under the new rule.