USCIS Increases Period of Stay for TN Nonimmigrants to Three Years

The much anticipated three-year TN admission is finally here! U.S. Citizenship and Immigration Services (USCIS) has published the final rule in the Federal Register and increased the period of admission and extension of stay in the U.S. for Canadian and Mexican citizens in TN status from one to three years. TN workers can now seek an extension of stay for up to three years instead of the prior one-year maximum period. Spouses and unmarried children under age 21 may also be admitted in TD status or granted an extension of TD status for up to three years. Unlike with many other nonimmigrant statuses, there is no limit on the number of times Canadian and Mexican professionals can apply for TN admission, visas and extensions.

The TN nonimmigrant classification permits qualified Canadian and Mexican professionals to seek temporary entry as business persons to engage in professions specifically listed in Schedule 2 of the North American Free Trade Agreement (NAFTA). Such professions include, but are not limited to, scientists, engineers, computer systems analysts, attorneys and medical professionals. Importantly, there is no annual cap on the number of TN admissions to the United States. Under NAFTA, Canadian citizens are not required to apply for visas with a U.S. consulate or file a petition with  USCIS and can simply request to be admitted to the U.S. as a TN worker at the port-of-entry. If eligible, Canadian TN status applicants will be issued a Form I-94 Arrival/Departure Record granting TN status for up to three years and allowing for multiple entries. While Mexican citizens do not need to file a petition with  USCIS, they are required to apply for a TN visa at a U.S. consulate before they can enter the U.S. in TN status.  Once the TN visa has been obtained, Mexican citizens can also apply for admission at the port-of-entry. If eligible, Mexican TN status applicants will be issued a Form I-94 Arrival/Departure Record providing TN status for up to three years and allowing for multiple entries.

It is important to note that the final rule does not automatically extend the period of stay for Canadian and Mexican citizens working in the U.S. in TN status. Such workers must still depart the U.S. or seek an extension or change of status prior to the expiration of their current Form I-94. If Canadian or Mexican citizens in valid TN status depart the U.S., they will be readmitted to the U.S. for the remainder of the authorized period on the original Form I-94 unless they submit a new application (or, in a case of Mexican citizens, apply for a new visa stamp) to be admitted for a new three-year period of admission.

We urge all of our clients with employees in TN status to contact us before the foreign worker's next trip outside the U.S. so that we can discuss the best possible strategy for extending the worker's TN status. In view of the limited number of H-1B visas and their unavailability until October 1, 2009, it may be prudent to extend the TN status of your current Mexican and Canadian employees who are working in the U.S. The longer validity of TN status will also have implications on the timing when the employer may commence the permanent residence process for these employees. Please do not hesitate to contact any of our immigration attorneys if you have questions about the effect of this final rule on your foreign national employees in TN status.