Employing Canadian and Mexican Professionals under NAFTA
The United States, Canada, and Mexico have entered into a North American Free Trade Agreement (NAFTA), which provides for expedited admission of business persons of each country into the other country. NAFTA went into effect on January 1, 1994. NAFTA makes temporary employment in the U.S. easier for certain Canadian and Mexican workers. NAFTA created a new classification, “TN,” for eligible Canadian and Mexican professional workers and also affected terms of admission for Canadians admitted to the U.S. under other nonimmigrant classifications.
The immigration-related provisions of NAFTA cover four categories of business persons from Canada and Mexico seeking entry into the United States: (1) B-1 temporary business visitors; (2) TN professionals; (3) E traders and investors; and (4) L-1 intra-company transferees.
The most popular among NAFTA categories are B-1 visitors and TN Professionals.
B-1 status under NAFTA
B-1 visitors under NAFTA may enter the U.S. to pursue activities usually provided for B-1 category, and additional activities falling into 7 categories, such as: (1) research and design; (2) growth, manufacture, and production; (3) marketing; (4) sales; (5) distribution; (6) after-sales service; and (7) general service. Notwithstanding this provision the Canadian or Mexican business persons must not be seeking to enter the local labor market, as under current B-1 guidelines and must continue to be paid from an overseas source and the proposed business activities must be international in scope. It appears that professionals are permitted to perform local services, as long as they remained on the Canadian payroll of the employer.
However, there is a list of professionalswho qualify for the temporary employment in the U.S.
Canadian professionals may enter the United States under NAFTA simply by providing documentation at the port of entry that they are engaged in one of the designated professions and that they possess the requisite educational credentials to qualify in the listed profession.
Mexican nationals, on the other hand, seeking TN status must comply with a procedure that is identical to that for H-1B classification for nationals of other countries. Their employer must file a petition for TN status with the USCIS, and the petition must be supported by the same labor attestation or labor condition application (LCA) required for any H-1A or H-1B alien. Furthermore, once the petition is approved, the Mexican TN must obtain a visa from a U.S. consulate prior to admission to the United States. TN professional must provide evidence that his or her work assignment in the United States will end at a “predictable time” and that he or she will depart upon completion of the assignment. The rules provide that the alien must identify the purpose of his or her entry that is limited in time, e.g., to perform services under a contract with a U.S. entity for a specified period of time.
Dependents (spouses and unmarried children under 21 years of age) of TN professionals are entitled to TD status with the same restrictions as the principal. Dependents may be students in the U.S., but may not be employed under the TD status.