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

The H-1B and TN visa programs are not identical. Each has strengths and weaknesses that a prospective foreign worker should carefully consider before making a choice.

By , Attorney · Capital University Law School

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 for obtaining 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.

The H-1B and TN visa programs are not identical. Each has its strengths and weaknesses, which 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 into place by the U.S. Congress to help U.S. employers hire the professionals they need to run successful 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.

Positive Aspects of H-1Bs for Mexican and Canadian Nationals

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, have any intention of staying in the U.S. permanently, or else 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 permanent residence.

Negative Aspects of H-1Bs for Mexican and Canadian Nationals

The H-1B program isn't without serious downsides.

First, if you are seeking an H-1B for the first time, you might have to wait a while. 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, that is, 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 30 of the following year.

In addition, U.S. Citizenship and Immigration Services (USCIS), the agency that processes H-1B petitions, has a specific process for accepting new ones. 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.

USCIS currently conducts a two-step process, whereby employers who wish to sponsor an H-1B worker complete an initial online registration in early March; then prospective employees selected in that lottery have 90 days to file their H-1B petitions. The odds of a petition being selected in the lottery have been around 20%.

The upshot is that 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 in the spring, hope the registration is selected and the petition is approved, and then wait until at least October 1st to actually enter the United States and begin working.

Second, you might not even get your petition approved. USCIS's decision-making on H-1B petitions has become increasingly strict over the years. Although President Biden has started softening some of the harsh policies from the Trump administration, getting an H-1B petition approval has never been routine. There must be a close connection shown between the degree required for the job and your degree, which must be at least a four-year university degree.

Also be aware that some jobs normally do not require a four-year degree, which means it's not worth entering the lottery at all. Even if your entry is selected, USCIS will not approve an H-1B petition for a job that doesn't require a degree.

Lastly, 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. In many cases, however, it's wiser to wait for USCIS to approve the new employer's petition, so that you can be assured that you'll be able to continue working. The last thing you would want is to start working for the new H-1B employer based upon a pending petition only to have USCIS later deny that petition and leave you without work authorization.

Be sure to check with qualified immigration counsel before choosing to change employers based upon a pending H-1B petition.

The TN Professional Program: Flexible But With Limits

On 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, 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.

Positive Aspects of TN Status for Mexican and Canadian Nationals

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. You just need to intend at some point in the future to return to your home country.

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 this process sometimes involves 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, 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 USMCA qualifications, you should be able to apply for a TN almost immediately.

Negative Aspects of TN Status for Mexican and Canadian Nationals

This flexibility comes with significant downsides. For starters, TN status does not allow for dual intent on the part of the foreign-born worker. Unlike with the H-1B program, a TN worker might not be able to seek U.S. permanent residence or apply for a green card while in the United States 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 (a green card). 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 match 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 need to either wait until your new employer files and is approved for a TN extension petition for you with USCIS, or 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 looking to switch TN employers.

The H-1B and TN nonimmigrant programs can be great for Mexican and Canadian nationals who want to seek employment in the United States. However, both programs come with downsides to carefully consider.

Talk with your potential employer and with a licensed immigration attorney if you have questions.

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