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.

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 North American Free Trade Agreement (NAFTA) 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.

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 Nolo's guides 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, has important significance. Persons in the U.S. in H-1B status are considered “nonimmigrants.” Normally, a nonimmigrant can stay in the U.S. only while his or her 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. The law says that an H-1B worker can intend to be a nonimmigrant 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 seeking a green card and eventual permanent residence.

The H-1B program isn’t without some serious negatives. First, if you are seeking an H-1B for the first time ever, you might have to wait a while. As of the writing of this article, U.S. immigration law only allows for a total of 65,000 new H-1B visas per year. 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 will be open from March 1 – March 20, 2020. USCIS will make its lottery selections from these registrations on March 31, 2020. If selected in the lottery, employers will have at least 60 days to file their H-1B petitions. 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 may not even get your petition approved. In some 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 your 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

Note: As of February 10, 2020, the United States–Mexico–Canada Agreement has not been fully ratified, and no changes to the TN visa have been enacted or are presently anticipated.

The TN visa program was instituted as a part of the U.S.’s commitment to the North American Free Trade Agreement, or NAFTA. The law says that 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 periods of 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 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 NAFTA 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 could 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 you are considering 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 Appendix 1603.D.1 of the NAFTA. 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 you 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 you will need 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 caveats that you should carefully consider. Talk with your potential employer and with a licensed immigration attorney if you have questions.

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