Chapter 1 - Purpose and Background

A. Purpose

The North American Free Trade Agreement (NAFTA) created certain economic and trade relationships between Canada, Mexico, and the United States. NAFTA permits a Canadian or Mexican citizen to seek admission into the United States for a temporary period to engage in business activities at a professional level, including a professional in the TN nonimmigrant visa classification.^[1]

To qualify for this nonimmigrant status, the alien must be a citizen of Canada or Mexico seeking admission for a temporary period of time to engage in business activities at a professional level.^[2]

On July 1, 2020, the United States-Mexico-Canada Agreement (USMCA) (PDF) entered into force and replaced NAFTA.^[3] However, the USMCA retained all substantive immigration-related elements of the former NAFTA and the United States continues to use the TN designation for these professionals. The USMCA list of professionals that govern TN admissions is identical to the NAFTA list.^[4]

For the purposes of discussing TN classification, this part uses the terms “NAFTA” and “USMCA” interchangeably.

B. Background

On December 17, 1992, the United States, Mexico, and Canada signed the NAFTA. Congress implemented this agreement in the North American Free Trade Implementation Act.^[5] The agreement entered into force on January 1, 1994. As previously mentioned, NAFTA allows Canadian or Mexican citizens who qualify to enter the United States temporarily for certain types of employment.^[6] The associated “TN professional” category from the agreement is a business person^[7] seeking entry to engage in a business activity at a professional level^[8] in a profession listed in NAFTA Appendix 1603.D.1.^[9]

The “TN professional” was modeled on the professional category in the United States-Canada Free-Trade Agreement (CFTA), which was in effect from January 1, 1989, until NAFTA’s entry into force on January 1, 1994.^[10] An alien admitted as a TN professional is not necessarily otherwise eligible for other temporary worker classifications, such as H-1B, or as an employment-based immigrant.^[11]

On July 1, 2020, the United States-Mexico-Canada Agreement (USMCA) (PDF) replaced NAFTA, but did not make any substantive changes to the provisions in NAFTA that affect immigration matters.^[12] As provided above, even though the USMCA replaced NAFTA, the USMCA retained all substantive elements of the former NAFTA and the United States continues to use the TN designation for these professionals.^[13]

C. Roles in U.S. Government

1. U.S. Customs and Border Protection

NAFTA/USMCA provides that qualifying TN professionals may be granted entry into participating countries upon application for admission at the border. In effect, this agreement grants U.S. Customs and Border Protection (CBP) primary authority to adjudicate TN applications for admission to the United States.^[14]

NAFTA/USMCA Chapter 16, Annex 1603, Section (D)(2)(a) specifies that no party to the agreement may require prior approval procedures, petitions, labor certification tests, or other similar procedures as a condition of such entry. This means that Canadian TN professionals may apply for admission directly at:

• A U.S. Class A port-of-entry;
• An airport handling international flights; or
• A pre-clearance or pre-flight station in Canada.

Canadian TN professionals may apply for admission to the United States without first filing a Petition for a Nonimmigrant Worker (Form I-129) with USCIS or obtaining a nonimmigrant visa from the U.S. Department of State (DOS). Unlike Canadian TN professionals, Mexican TN professionals may not apply for admission directly with CBP. Mexican TN professionals must first obtain a TN nonimmigrant visa from the U.S. Department of State (DOS). 

When applying to CBP for admission, the TN professional must:

• Meet all eligibility requirements as a TN professional;
• Satisfy the inspecting CBP officer that the proposed stay is temporary;^[15] and
• Comply with existing immigration measures applicable to admission into the United States as a nonimmigrant, including proof of citizenship in a NAFTA/USMCA signatory country.^[16]

2. USCIS

A qualified Canadian or Mexican professional present in the United States may apply for an extension of his or her TN status if he or she is currently in a valid TN status. In addition, such professionals who are under a different valid nonimmigrant status may apply for a change of status to TN. In all cases, such professionals must file a Petition for a Nonimmigrant Worker (Form I-129) with USCIS to do so.^[17]

USCIS also accepts and adjudicates Form I-129 petitions filed by Canadian TN professionals residing outside the United States. If approved, the Canadian professional may present the approval notice to a CBP officer at the port of entry (as opposed to having to file an application for admission with CBP to enter under the TN classification as described above).

D. Legal Authorities

• NAFTA/USMCA Chapter 16 – Temporary entry for business persons
• The United States-Mexico-Canada Agreement (USMCA) (PDF) – Protocol replacing the North American Free Trade Agreement with the Agreement between Canada, the United States of America, and the United Mexican States
• Pub. L. 103-182 (PDF) (December 8, 1993) – North American Free Trade Implementation Act
• Pub. L. 116-113 (PDF) (January 29, 2020) – United States-Mexico-Canada Agreement Implementation Act
• INA 214(e) – Nonimmigrant professionals and annual numerical limit
• 8 CFR 214.6 – Citizens of Canada or Mexico seeking temporary entry under NAFTA/USMCA to engage in business activities at a professional level

Footnotes

[^ 1] See NAFTA Annex 1603, Section D (limited to the entry of a citizen of a party country seeking to render professional-level services for an entity in another party country). The TN classification is not found in the general temporary immigration provisions at section 101(a)(15) of the Immigration and Nationality Act (INA), but is included at INA 214(e).

[^ 2] For specific professions that may be eligible for the TN nonimmigrant classification, see NAFTA Chapter 16, Appendix 1603.D.1 to Annex 1603, Professionals (NAFTA Appendix 1603.D.1).

[^ 3] See United States-Mexico-Canada Agreement Implementation Act, Pub. L. 116-113 (PDF) (January 29 2020).

[^ 4] See NAFTA Chapter 16, Annex 1603, Section D, Professionals. See USMCA, Chapter 16, Appendix 2 (PDF) (found at page 1322 of the USMCA).

[^ 5] See Pub. L. 103-182 (PDF) (December 8, 1993).

[^ 6] See NAFTA Annex 1603, Section D (limited to the entry of a citizen of a party country seeking to render professional-level services for an entity in another party country).

[^ 7] See 8 CFR 214.6(b) (defining business person as a citizen of Canada or Mexico who is engaged in the trade of goods, the provision of services, or the conduct of investment activities).

[^ 8] See 8 CFR 214.6 (NAFTA TN classification) and 8 CFR 214.6(b) (definition of business activities at a professional level).

[^ 9] See 8 CFR 214.6(c) for the requirements for each eligible profession within the TN classification.

[^ 10] Congress implemented CFTA in 1988. See United States-Canada Free-Trade Agreement Implementation Act of 1988, Pub. L. 100-449 (PDF) (September 28, 1988).

[^ 11] See INA 101(a)(15)(H)(i)(b). See INA 203(b)(3).

[^ 12] See United States-Mexico-Canada Agreement Implementation Act, Pub. L. 116-113 (PDF) (January 29 2020).

[^ 13] The USMCA list of professionals that govern TN admissions is identical to the NAFTA list. See NAFTA Chapter 16, Annex 1603, Section D, Professionals. See USMCA, Chapter 16, Appendix 2 (PDF) (found at page 1322 of the USMCA).

[^ 14] See NAFTA Chapter 16, Annex 1603, Section D, Professionals.

[^ 15] See 8 CFR 214.6(b).

[^ 16] See 8 CFR 235 (inspection of persons applying for admission). See 8 CFR 214.6(d).

[^ 17] See Chapter 4, Extension of Stay and Change of Status [2 USCIS-PM P.4]. See Part A, Nonimmigrant Policies and Procedures, Chapter 4, Extension of Stay, Change of Status, and Extension of Petition Validity [2 USCIS-PM A.4].