USCIS to Increase Scrutiny for TN Visa Requirements: Impact on Employers

U.S. Citizenship and Immigration Services (USCIS) recently updated its policy manual regarding TN visa eligibility requirements. The new guidance imposes stricter guidelines for eligibility. Changes focus on the nature of the employer, the definition of qualifying professions and the role of self-employment.

Background

The TN visa is a classification under the United States-Mexico-Canada Agreement (USMCA), formerly known as the North American Free Trade Agreement (NAFTA). The TN permits qualified Canadian and Mexican citizens to seek temporary entry into the US to engage in business activities within specific professional occupations. The TN visa can be applied for in three-year (3-year) increments.

Key Changes for Employers

• US. Employment Requirement: While previously, a foreign employer doing business in the U.S. could sponsor a TN visa, the sponsor must now be a US employer or entity.
• Prohibition of Self-Employment: The policy explicitly states that self-employment is not permissible under the TN classification.
• Clarification of Qualifying Professions: USCIS provides clarification on the types of positions that qualify for TN status, including in the Engineer, Economist and Scientific Technician/Technologist.
• Documentation: Applicants must demonstrate that the business activity falls within the profession and that they have the required qualifications. For some professions, experience is required in addition to the degree and evidence must be in the form of letters from former employers. USCIS also clarifies when licenses are required.

Impact on Employers

Policy updates may affect both new TN applicants and current visa holders during renewal processes. The recent TN visa policy updates are a significant shift in requirements and evaluation for employers and applicants’ job duties. Employers and applicants may face increased scrutiny and potential for denials.

Tips for Employers

• Review job descriptions to make sure they align with the updated TN guidance
• Assess applicant qualifications to determine if they meet the criteria for the intended profession
• Consult with immigration counsel for compliance strategies and to determine alternatives to the TN visa for employees that may be impacted