TN Visa Basics

The TN visa is a special visa that allows Canadian and Mexican citizens to work in the USA. The TN visa is a result of the North American Free Trade Agreement that is intended on making it easier for citizens in Canada, Mexico and the USA to freely engage in professional business activities on a temporary basis. Although there is no yearly quota on the number of TN visas issued, and each 3 year TN visa can be renewed indefinitely, it is not meant to replace a green card. It is basically a special privileged “H-1B visa” for Canadian and Mexican citizens of specific business professions.

Who is eligible

Firstly, the visa applicant must be a citizen of Canada or Mexico. They cannot have any other immigration status in America. Secondly, their employment must be temporary, much like the H-1b visa that usually the employment results in a green card filing for the employee because good talent must be retained. Lastly, the jobs that the TN visa applicant is to engaged in must be defined in the trade agreement. The list of designated professional occupation that is eligible for TN visas is here. You will see that the list of professions typically require university level education such as a bachelor’s degree. It is usually best that the degree was awarded in a US university/college. If the degree is from Canada or Mexico, sometimes the USCIS will require academic evaluation from a credential evaluation service.

Additional information for specific occupations

From the list of occupations, there are some occupations that have special rules. Here are specific rules for the following occupations:

  • Physicians – limited to a teach/research role. A TN physician cannot be engaged in clinical care, direct care, residency, or internships. Treating a patient through research/teach is permitted. 
  • Nurses – Canadian nurses must also obtain license to practice nursing from the state they intended on performing their job
  • Medical Lab Tech - radiological technologists, respiratory specialists and nuclear medicine technologist are excluded and prohibited from using TN visas to engage in work
  • Healthcare Workers – not all health care workers can use the TN visa to work in America. It must be explicitly listed in the trade agreement.
  • Management Consultants – only those who are either independent consultants coming to America for a specific project, consulting firms that are contracted by a US company or employees of US companies hired for a temporary project and not permanent employees.
  • Computer systems analyst – cannot be computer programmers.

Maximum duration of stay

Each visa is awarded at a 3 year increment and can be renewed indefinitely. Keep in mind though, it does not substitute a green card and so if an individual uses TN visa continuously, it is pretty obvious the job is not temporary and the USCIS will forbid the individual to continue to enter as a TN visa holder.

Travel internationally on a TN visa

Travel in and out of the US is perfectly ok on a valid TN visa. Make sure you have a passport that is valid for 6 months and bring the original I-94 that you received when you entered the first time into America.

How to Apply

Canadians can simply apply for TN visa at an airport or port-of-entry while entering the US. You just need the required documentations:

  • Job offer specifying exact job role, duties, length of stay, salary
  • Valid passport
  • Academic transcripts and degree
  • Academic evaluation, if school is not in Canada or US
  • Information about the employer
  • Fee for I-94

For Mexicans, you must apply at a US Consulate/Embassy. You need to be interviewed and also fingerprinted. The process to get a TN visa is similar to getting any other visa to enter America. You have to apply through the Department of State and in addition to the above documents, you also need

  • Form DS-160
  • 2×2 Passport Photos
  • Visa application fee

Extensions

Canadians can simply apply for an extension at a US-Canadian pre-flight or port-of-entry (airport). Mexicans must apply through filing a I-129. Canadians can also use the I-129 if they do not with to leave the country and return with a new TN visa. The process is typical, requiring:

  • Copy of I-94
  • Copy of visa stamp
  • Copy of passport ID page showing validity
  • TN job offer letter
  • Information on the employer
  • Fee, currently at $320.

The USCIS recommends that you file at least 45 days before the expiration of the TN visa. It can be filed up to 6 months in advance of an expiring TN visa. If you filed a I-129 and then your I-94 expires before you receive an adjudication of the I-129, you have 240 days to continue employment while the I-129 is pending. Keep in mind, if you receive a rejected TN extension letter, you must stop working and leave the country. Traveling during a TN visa extension is highly risky and not recommended because in order to file a I-129 extension, you are required to be physically present in the country. There is no appeal to a denial of extension.

The OPT Cap-Gap extension

girls of international students

For those F-1 students who graduated and were able to find an employer to file a H-1B visa for them, sometimes there is a need to invoke the Cap-Gap extension to continue working in America legally. The unique situation arises on the fact that H-1B visa can not be filed any earlier than April 1st of each year and an approved H-1B visa will not start until October 1st of the same year. For some F-1 students, their OPT or OPT STEM extension could be expiring before October 1st (but must at least expire AFTER April 1st, meaning you must have applied for H-1B during an active OPT or OPT STEM Extension), leaving them a temporary period between April and October where they would not have a legal authorization to work in America. In this particular situation, the USCIS has a Cap-Gap employment authorization status that can be invoked and thus allowing the student/employee to continue working legally.

Who is Eligible for Cap-Gap

To reiterate, the only people eligible for the Cap-Gap extension status are F-1 students with a pending H-1B visa application who have an active OPT or OPT STEM extension that will expire AFTER April 1st of the year. If the OPT/OPT STEM Extension is expiring before April 1st, you cannot invoke the Cap-Gap extension status and may have to leave the country. The H-1B visa application, at the earliest, can be filed on April 1st of the year. As long as it was filed BEFORE the OPT/OPT STEM extension expiration date, the F-1 student is eligible.

How long can I work under the Cap-Gap extension

You should understand that there are actually 2 kinds of Cap-Gap extension status.

  • The first kind is when an H-1B visa was filed on your behalf but not yet received for processing by USCIS. This means that your employer has filed a H-1B visa application for you, but did not receive the I-797C Notice Of Action indicating that the USCIS has received and is processing the H-1B visa application. In this case, you can only extend your employment authorization through Cap-Gap extension until June 1st of the year.
  • The second kind is when your employer filed an H-1B visa application and have received the I-797C notice of action from USCIS that the application has been received and is being processed. For this type of situation, you can have the full Cap-Gap extension on your employment, which is to extend employment authorization until September 30th of the year.

How to get Cap-Gap employment extension

In order to get this unique Cap-Gap extension, you must contact your school’s international student office. If there is time, you should always wait until your employer has received the I-797C notice of action from USCIS and that the USCIS acknowledges the receipt and processing of the H-1B visa application. This gives you the maximum extension under the Cap-Gap rule, which is to extend employment until September 30th. Check with your school’s international student office for exact rules, but generally you would need the following:

  • Completed application for Cap-Gap extension (varies between schools)
  • Fee, if required by your school
  • Copy of current I-20
  • Copy of current EAD card, front and back
  • For applying for the second kind of cap-gap, the I-797C from USCIS indicating that the H-1B application has been received and is being processed.
  • For applying for the first kind of Cap-Gap which only extends until June 1st, then you need to provide a statement from your employer stating they filed a H-1B visa for you and the delivery notice of the application showing it was sent and delivered to USCIS.

Time Frames for Cap-Gap extension

Generally the time of processing solely depends on your school’s internationals student office. Some schools turn it around very fast while others may take a week or two. Always try to apply as soon as you can but not too soon (before the I-797C is received, if possible). Once approved, your school will issue you a new I-20 which has an endorsement for the Cap-Gap employment extension. There is some leeway here with the processing time of the Cap-Gap employment extension. If you applied for Cap-Gap and for some reason you did not receive a new I-20 BEFORE your OPT expired, it is actually OK to continue working. The USCIS has a rule that anyone who is eligible for Cap-Gap, automatically gets that status with a pending H-1B application regardless of the stage of the Cap-Gap extension. This is not to say you don’t have to apply for Cap-Gap through your school, you still need the new I-20 with the Cap-Gap endorsement. However, this means that you don’t have to temporarily stop working or be out of status with a pending Cap-Gap application and an expired OPT.

What if the H-1B visa is rejected

Suppose you have a Cap-Gap extension approved and employment authorization extended until September 30th, however your H-1B visa application was rejected, then you still must leave the country within 60 days from the notice of rejection. For example, if you have an approved Cap-Gap extension but you received a rejection letter from USCIS denying you H-1B visa on May 1st, then you must leave the country by August 1st. It does not matter if you have a Cap-Gap extension until September 30th, the reason being that you are already out of OPT status and if you have a rejected H-1B visa, you really shouldn’t be in the country anymore.

Can you travel during Cap-Gap extension

Simple answer is no. During Cap-Gap, you are technically out of F-1 visa status because your OPT has expired. If you leave the country, you cannot re-enter on the F-1 visa as it is considered expired and terminated. You can only return on H-1B visa, tourist visas, or any other visa that you apply from outside America. If you don’t have a new visa to use to return to America, DO NOT TRAVEL during a Cap-Gap extension.