Immigration Attorney
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Sunday, December 28, 2003

On December 31, 2003, the 5,500 annual numerical limit and visa petition procedures imposed on the TN nonimmigrant classification for citizens of Mexico will expire pursuant to a provision of the North American Free Trade Act (“NAFTA”) that set a 10-year duration for the cap and petition procedures. Beginning January 1, 2004, Mexican citizens seeking TN status will apply for a TN visa at a United States consulate without the need for prior petition approval from the United States Citizenship and Immigration Services (“USCIS”), or a certified Labor Condition Application (“LCA”) from the Department of Labor (“DOL”).

The NAFTA and the Immigration and Nationality Act (“INA”) permit the temporary entry to the United States of qualified members of specific professions who are citizens of Canada and Mexico. These foreign nationals are granted TN nonimmigrant status, with TD status accorded to their dependent family members. Through December 31, 2003, the law subjects Mexican TN professionals to requirements and procedures that differ substantially from those imposed on Canadian citizens. Mexican professionals seeking TN status have been required to comply with petition and visa application procedures that are nearly identical to those in place for H-1B professionals. The foreign national's employer has been required to obtain approval of a Form I-129 Petition for Nonimmigrant Worker from the USCIS, as well as approval of an LCA from the DOL. Once the petition has been approved, the Mexican citizen must obtain a TN visa from a U.S. consulate for admission to the United States.

Canadian professionals are able to enter the United States in the TN category under much simpler procedures. Prospective employers of Canadian TNs are not required to submit an I-129 petition, nor are they required to obtain DOL approval of an LCA. Canadian professionals are not required to obtain a visa from a U.S. consulate. Rather, these foreign nationals may enter the United States by providing at the port of entry documentation verifying that they are engaged in one of the designated TN professions, and that they possess the requisite educational qualifications for that profession. There is no limitation on the number of Canadian TN admissions to the United States.

In anticipation of the expiration of the petition and LCA requirements for Mexican TNs, we have learned that the Department of Homeland Security (“DHS”) plans to publish an interim final rule that will formalize the new procedures. In addition, the Department of State (“DOS”) is expected to set forth its own revised procedures for Mexican TN visa applicants.

What this means:

Beginning January 1, 2004, Mexican citizens seeking TN classification will apply for a visa at a United States consulate in Mexico, and will no longer need prior petition approval from the USCIS or an LCA certification from the DOL. Employers that seek to extend the stay of Mexican citizens in TN status will not be required to include an LCA with their extension petitions.