The TN Visa Primer: Fast Track to Working in the US

TN VISA BASICS

It may come as a surprise to some, but Canadians do not have an automatic right to work in the US. Despite the fact that Canadians can enter the US as visitors without a Visa (although they need to show proof of Canadian citizenship and a photo ID and a passport at airports), they need a Work Visa to legally work in the US.

For the purposes of this article, "working" means what we normally consider it to mean: earning an income by conducting work. So working in the US, means working for a US company either as an employee or a contractor whereby that company is paying you or your company a salary or fee for services rendered in the US. Working generally does not include attending business meetings, trade shows, and even negotiating contacts provided actual sales are not conducted while in the US.

If you therefore have "working" opportunities in the US as described above, you would likely be in need of a US work visa in order to legally work in the USA. There are a number of different types of US work visas available for people including H-1B Visas, L-1 Visas, E-2 Visas and J-1 Visas. However, if you are Canadian, the most attractive option is usually the TN Visa.

TN VISA ADVANTAGES

The TN Visa is a creature of the NAFTA Agreement which is a the well known Free Trade agreement between Canada, the US and Mexico. The TN Visa has a number of advantages over its other work visa cousins. For instance, the the processing times for TNs are virtually non existent as applicants can obtain them right at the Canada/US border on the spot. Secondly, the paperwork involved in TN Visas are minimal: all that is required is a job offer or contact from the US employer and proof of employment and educational credentials and Canadian citizenship form the applicant. Believe it or not, there is are no application forms to fill out if you are Canadian and applying for the TN Visa at the Canada/US Port of Entry. Seems so easy!
How can the process be so simple? All one needs is a job offer from a US company and bingo, I can get a US work visa. Not so fast!

THE HARD PART

Now for the catch. Although the paperwork and processing time for TN Visas is indeed minimal, there are a number of very important factors that you should be aware of before taking the trip down to the US/Canada border. First of all, not all US job offers qualify under NAFTA. In order to qualify for a TN Visa, the US job has to appear on a list of occupations found at the appendix of the NAFTA agreement itself. (for a list of such occupations visit my website at www.VisaPlace.com for details). There are over 50 job titles which is not a long list when you think about it. And not only does your job offer have to be on that list, but you as the applicant have to meet the specific educational and employment criteria for the given occupation. For example, if you are an accountant and you have a job offer in the US as an accountant, you have to have completed either a baccalaureate degree in accounting and/or a CPA, CA, CGA, or CMA.

You will also notice that most occupations on the TN Visa list require completion of a university degree. NAFTA is heavily weighted in favour of professionals who have competed a high level of education who have completed university. Therefore if you have taken courses in university even for a few years but did not receive your degree, you may be out of luck. Now there are a select few occupations that do not require completion of university such as Management Consultants, Scientific Technologist/Technions and Computer Systems Analysts. But with such occupations, there are strict requirements in terms of experience.

So not only do you have to meet the educational and employment requirements of your occupation, you also have to realize that your paperwork has to be properly prepared. This means that just because you may indeed qualify for a TN Visa, an immigration officer assessing your case may not see it that way. Why? The answer is simple: Your paperwork may not be properly prepared. An immigration officer when assessing TN Visa applications, carefully scrutinizes all aspects of the application including the job offer letter itself, your resume, employment references, educational documents (especially if they are not from North America) and last but not least....YOU. Yes the officer, in deciding your case, will likely ask you a number of questions about your intentions for work in the US, your ties to Canada, your knowledge of the job etc. Not only are your documents examined, you are too so it is important to be prepared.

THE HOLISTIC APPROACH

Finally, once you have all the paperwork in order for your TN Visa, you are ready to apply and to present your documents before an officer. You should know that one of the most important factors for successful TN Visa applications is deciding where to apply for it. If you are in Canada, NAFTA permits you to apply at most Canadian/US borders as discussed. But the reality is that while the rules governing TN Visas are the same for everyone, not all Canada/US borders evaluate cases the same way. What I often tell clients is that "borders are like people and everybody is different". The system is not perfect and is not always consistent which means that an officer at one border may say "yes" to your application while another officer at a different border may flat out refuse you. And to make matters worse, there is no way to know in advance what the outcome will be of a given application.

But there is hope! While there is no "crystal ball" or guarantee in predicting whether you will be successful in your TN Visa application, there are patterns of decision making we have noticed over the years when it comes to the various borders. The bottom line is that generally, some borders are more, to but it mildly,"difficult" than others. You do not learn this at law school but only though years of experience. When we look at TN Visa cases, not only do we think about the documents, and our clients' experience and education etc., but issues about where they should apply are also considered. We have found this holistic approach to TN Visas which include thinking about not only the application itself but where to apply for it, to be very effective.

I hope that you have found this TN Visa primer helpful and good luck.

But Can't We do it Ourselves?

I get that one all the time.

When meeting with people interested in my immigration services, I am asked such questions many times. Almost every time, clients are surprised to hear my answer: "Why yes!" I reply. "Sure you can do it yourself" , I continue. "I encourage independence. I want people to take control of their own immigration situations"

I do not blame people for asking me whether they can handle their own immigration applications by themselves. After all, especially in Canada, the government does what it can to encourage applicants to do it themselves. On their websites and in their written material, these sites go out of their way to explicitly tell people that they can do it themselves. After all, there is an abundance of information on immigration practice and procedure available to the general public for all to view.

The problem is what they don't tell you. Appeal courts and tribunals have never been busier with cases that have been refused by the very government that is encouraging people to go it alone without legal representation. Sadly, in my practice I see too many refused cases brought to me by well-meaning applicants who took the government's message to heart. Thinking that all they had to do was follow the instructions on a website or to order an application kit and fill out forms, people are devastated to discover their good-faith efforts ended up with a rejection of their applications.

Then why then would I as an immigration lawyer dedicated to helping people with their immigration problems answer in the affirmative when asked "But can't we do it ourselves?"

Well in part is because it that is the only honest answer I can give. People can apply for immigration benefits by themselves, if they really want to. Nothing is preventing people from doing this.

However, I do not just leave it at that. After telling people that the power is within them to go it alone, I then ask them a question--a question that I think is a much more important one: Should they handle their immigration cases on their own? When phrased this way, the light bulb usually is turned on. Next to tax law, immigration legislation is considered the most complicated area of law by many. What the general public sees on various government websites or off-line publications on immigration topics amounts to a gross over-simplification of procedures and rules involved in virtually all immigrant and non-immigrant categories. This causes a sense of "false hope" for people at best and at worst, a total misrepresentation the facts about what is involved and necessary to make a successful application. From the most basic sponsorship application to the most intricate corporate immigration plan for foreign workers, there are always important legal issues that only a trained lawyer can and should handle.

The consequences of not seeking legal help for one's immigration case are too serious to ignore. The last thing people want are refusals caused by some technicality not mentioned on any website. And when there is a refusal, the remedy is often an appeal which is very stressful, time consuming and costly.

So when I am asked about whether people can go it alone, I tell them "Can do...but should not".

Have a great weekend.
Michael Niren

Love is Not Enough

Many of our clients are surprised to learn that love is not enough when it comes to immigration. Just because you are engaged, in a common law relationship, married or even have children does not itself mean you are entitled to an immigration benefit.

From both sides of the border, Canadian and US immigration law does not necessarily allow your loved ones to immigrate and live with you just because of your relationship to that person. In my practice I often encounter couples who are together but live in different countries. They proudly show me their newly minted marriage certificates, family photos, joint utility bills etc. When I tell them that their relationship by itself will not make the cut, they look at me like a deer in headlights! How is it possible that we can't live together? We are married! We just bought a house!

I gently tell them that their relationship to each other is indeed significant but more is needed, much more. Immigration forms have to be filled out and submitted, government fees have to be paid, immigration procedures have to be followed and supporting documents proving the relationship have to be collected. Moreover, financial information about the sponsor has to be disclosed. And the news doesn't end there: the couple also has to have some patience before they can legally live together because there always is a waiting time for applications to be processed through the immigration system.

But for the vast majority of cases, there is a light at the end of the tunnel. After preparing all the forms and documents and waiting for the approval of the applications, families are indeed reunited. So love is vindicated at the end of the day; its just that it needs a little help when it comes to immigration to Canada or immigration to the US.

Welcome to my Blawg

January 9, 2008

Thank you for visiting my Canada and US Immigration Blawg. I hope you enjoy reading it as much as I will enjoy writing it.

My goals are to give you an inside look from a lawyer's perspective concerning issues people face when it comes to immigration to Canada and to the USA. At my immigration law practice at Niren and Associates, my staff and I meet many interesting people with all sorts of Canada and US immigration needs. From the business person wishing to transfer to the USA on a US Work Visa, to a family from Afghanistan facing deportation from Canada, we see it all!

We really like to help people resolve their Canadian and US immigration issues. There is so much misinformation out there. We have found that the road to success begins with understanding and education. Simply clearing up misconceptions about immigration facts goes a long way to helping people make informed decisions about their own personal situation.

Often when I begin a consultation with a client, I first listen to what they have to say and many times I find that their situation is not as difficult as they think; rather the road blocks they face are really misunderstandings about immigration law and procedure. It is amazing how many smiles we get after listening to our clients' stories and then attempt to explain to them what we see as solutions to their problems. In many cases, all it takes is telling them about a what form they have to fill out or what number to call. Of course, many times we see clients with much more complicated situations that require sophisticated legal advice and representation. However, some of the most distressed people we meet walk out the door with renewed confidence and a direction just from a quick consultation about a simple matter they were originally confused about.

I really hope you enjoy my adventures in law and I look forward to sharing them with you. My first aim is that you are entertained and along the way, you may also learn something.

Just remember that what you find here is NOT legal advice and should not be relied upon in making decisions about your own personal situation. You should always consult with a lawyer personally before taking any action regarding your own immigration situation.

That is all for now and I look forward to sharing with you more of my stories!

Sincerely,

Michael Niren