H-1B or TN Visa: Which Should a Canadian or Mexican Choose?

Workers from Canada and Mexico have a fine choice of work visa options. Learn more about the comparative advantages of the H-1B and TN visas.

If you are a Mexican or Canadian professional looking to work in the United States, you’re in luck: Thanks to the close ties between the U.S., Mexico, and Canada, you have quite a few options to obtain a work visa. If you possess a Bachelor’s degree or higher, or if you are a professional or specialist in a particular field, you might be eligible for a TN visa as a professional under the United States-Mexico-Canada Agreement (USMCA) or as an H-1B specialty occupation worker.

Be aware that the H-1B and TN visa programs are not identical. Each visa type has strengths and weaknesses that you should carefully consider. Let’s look at what each visa type can, and cannot, offer.

Short-term issues in obtaining H-1B visas: On June 22, 2020, President Trump signed an executive order banning certain employment-based visas, including the H-1B, through Dec. 31, 2020. This means that access to new H-1B visas (issued by U.S. consulates abroad) has been frozen until 2021. This executive order does not affect the status of workers already in the United States in valid visa status. For example, those who were approved as part of the same year’s visa lottery will be unaffected by the ban, and their H-1B status will take effect on October 1, 2020, as intended. However, H-1B workers in valid status and who do not have a valid visa stamp should refrain from international travel until this ban is lifted. Also, certain workers are exempted from the ban, such as those already working in the U.S. on an approved work visa, those who work in healthcare who are treating/researching COVID-19, and those working in the national food supply chain. Workers already employed in the U.S. may continue to apply to extend their visa status, seek a green card, or change status. Individuals in the United States on a different visa category may still seek to change to H-1B status if otherwise eligible.

Short-term issues crossing U.S. border: As a result of the COVID-19 pandemic, the U.S./Mexico and U.S. Canada borders have closed for all nonessential travel as of 2020. The Department of State advises that essential travel includes crossing the border to work in the U.S. and traveling to engage in cross-border trade. Also considered essential are other non-employment related activities such as engaging in military-related travel, traveling to attend education institutions, traveling for emergency response and public health purposes, engaging in official government or diplomatic travel, and crossing the border for medical reasons. People seeking a TN visa to work in the U.S. are still able to obtain work authorization despite these closures, but due to the essential travel requirement, TN applicants might experience increased scrutiny to ensure that their travel is essential. However, these travel restrictions do not apply to air travel.

H-1B Nonimmigrant Program: Long Waits Lead to Good Things

The H-1B visa program was first put in place by the U.S. Congress to help U.S. employers hire the professionals they need to run successful businesses, companies, and organizations. When a U.S. employer wants to hire for a position that requires at least a Bachelor’s degree in a particular field, the employer can petition to allow a qualified foreign national to take the job as an H-1B worker. Take a look at this guidance on the H-1B nonimmigrant visa for more information.

The H-1B program is quite good for Mexican and Canadian nationals. You can stay and work in the U.S. under H-1B status for up to three years initially and can extend your stay to six years in total, provided you continue working for an employer that petitioned for you as an H-1B worker. You are also ordinarily allowed to leave and return to the U.S. as you like, so long as your H-1B status remains valid.

Most importantly, the H-1B program allows for something called “dual intent,” an immigration law concept that, while strange, is significant. People in the U.S. in H-1B status are considered “nonimmigrants.” Normally, nonimmigrants can stay in the U.S. only while their status remains valid, and must return home once that status expires. Nonimmigrants cannot, in most cases, intend to stay in the U.S. permanently, or their visa applications or applications to change status will be denied and any existing visa potentially canceled.

Immigration law makes a special exception for H-1B workers, however. It says they can intend to be nonimmigrants and eventually leave the U.S. while also intending to stay permanently. This “dual intent” is one of the reasons why H-1B status is so coveted.

In certain situations, the law also allows H-1B status holders to extend their stay in the U.S. beyond six years, if they are waiting for an employer-sponsored permanent residence application to finish processing. For Mexican and Canadian nationals, H-1B status is an excellent “foot in the door” to a U.S. green card and eventual permanent residence.

The H-1B program isn’t without serious negatives. First, if you are seeking an H-1B for the first time, you might have to wait a while. As of the writing of this article, U.S. immigration law allows for a total of only 65,000 new H-1B visas per year for jobs that aren't exempt from this cap. There are 20,000 additional visas available to persons with advanced degrees, e.g. master’s, Ph.D., professional degree, from a college or university in the United States, which effectively makes the annual quota 85,000. This “H-1B cap” is tied to the U.S. fiscal year, from October 1 of the current year to September 31 of the following year.

In addition, U.S. Citizenship and Immigration Services (USCIS), the body that processes H-1B petitions, has a specific process for accepting new H-1B petitions. Historically, USCIS would not accept new H-1B petitions for the next fiscal year until the first five business days of April of the current fiscal year. For fiscal year 2021, USCIS is implementing a new and partially revised process. Employers who wish to sponsor an H-1B petition must complete an initial online registration process that ran from March 1 to March 20, 2020. For employees selected in that lottery, employers had at least 60 days to file their H-1B petitions. Thus if you want to work for a U.S. employer on an H-1B visa, you will have to first wait for your employer to register for the H-1B lottery, hope the registration is selected and the petition is approved, and then wait until at least October 1st to actually enter the U.S. and begin working.

Second, depending on the demand for H-1B workers, you might not even get your petition approved. In past years, H-1B visa demand has been so high that the 65,000 visa cap was exhausted during the April filing window. With the new online registration system, there will be a similar circumstance where only the number of allotted H-1B lottery slots will be granted. There’s no guarantee that you will receive an H-1B visa slot, and even if selected, there is no guarantee that your petition will be approved.

Last, to maintain H-1B status, you must continue to work with the employer that originally filed the H-1B petition for you. If you ever want to move to a different employer, that new employer first must file an H-1B transfer petition for you. Once the new employer’s petition is pending with USCIS, you may begin working for that employer.

The TN Professional Program: Flexible But With Limits

As of July 1, 2020, the United States-Mexico-Canada Agreement (USMCA) replaced the North American Free Trade Agreement (NAFTA), which first created the TN visa. Nevertheless, the TN visa rules and procedures are mostly unaffected by the new trade agreement. In fact, the NAFTA text regarding TN visas has been largely reproduced in Chapter 16 of the USMCA with only minor changes to the list of professions that qualify for TN status. Other than these, as of August 11, 2020, no new regulations or policies for adjudication or enforcement of the TN visa have been published.

Under the USMCA, as with NAFTA, Mexican and Canadian nationals who have specific educational or professional credentials can enter the U.S. to engage in employment related to their specialty. See TN Visa to the U.S. From Mexico or Canada: Who Qualifies? for background information.

Similar to the H-1B program, TN workers can stay in the U.S. for up to three years at a time. However, there is no upper limit on the total amount of time a Mexican or Canadian citizen can spend in the U.S. in TN status.

TN extensions can be completed through filings with USCIS. Typically, TN visa holders are also able to obtain extensions by visiting a U.S. consulate or embassy in Canada or Mexico, but as of early 2020, the extension process at a consulate or embassy has involved increased scrutiny and difficulty.

The TN program is incredibly flexible. Unlike the H-1B program, an employer looking to employ a Mexican or Canadian national as a TN worker need not file a petition in advance or worry about fiscal year limits or visa caps. Mexican nationals can go directly to a U.S. consular post and apply for a TN visa stamp, and Canadian nationals can normally (not during the pandemic) go directly to the U.S. border or preflight inspection at an airport in Canada and apply for admission as a TN worker. In short, you do not need to wait for a U.S. employer to go through the lengthy USCIS petition process; so long as you meet the USMCA qualifications, you should be able to apply for a TN almost immediately.

However, this flexibility comes with some significant downsides. For starters, TN status does not allow for dual intent. Unlike with the H-1B program, a TN worker cannot seek permanent residence or apply for a green card while in the U.S. in TN status. Doing so could potentially cancel the TN status and even get you removed from the United States. If you are looking to enter the U.S. or are already in the U.S. as a TN worker, you will need to exercise extreme care if seeking permanent residence. Contact an immigration attorney who can help you navigate your options.

Second, unlike the H-1B program, TN workers must fit into one of a limited, rigid list of professional classifications defined in Chapter 16, Appendix 2 of the USMCA.If your educational or professional background does not fit into one of these categories, you won’t be eligible to apply for TN status.

Lastly, as with the H-1B program, TN workers in the U.S. must continue working for their sponsoring employer in order to maintain valid TN status. If you are in the U.S. as a TN worker and wish to move to a new employer, you will either need to wait until your new employer files and is approved for a TN extension petition for you with USCIS, or to leave the U.S. and reapply abroad for a new TN visa (for Mexican nationals) or a new TN admission with the new employer.

Consult an immigration attorney if you are looking to switch TN employers.

The H-1B and TN nonimmigrant programs are great for Mexican and Canadian nationals who want to seek employment in the United States. However, both programs come with downsides that you should carefully consider. Talk with your potential employer and with a licensed immigration attorney if you have questions.

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