TN Refused if US Unemployment Rises?

They will let you move all of your belongings into the US on a TN-1 visa. But when you go to renew, if they want to screw you over, they will hold that against you and refuse you entry by claiming that you are an immigrant and not a temporary worker, contrary to the status a TN-1 grants you.

You know, that is about the gist of things. Many times people post on this forum looking for info about selling everything back home, moving all their possessions and buying homes in the U.S. when working on TN-1's. It's a scary thought. TN-1 is a temporary visa with non-immigrant intent. Just having an American DL and other American ties (credit/bank cards, US titled/financed vehicle) will cause you a heck of a lot of trouble as a Canadian National at the border if you get the wrong CBP officer, even though it was legally obtained. When you're dealing with the rejection of a renewal or new petition at the border, things go south very fast when it's disclosed that there is property and other significant chattels stateside. They often do assume you have intent at that point.

With the current hyper-sensitive nature of the U.S. employment market and generalized 'anti-foreign workers' sentiment among the U.S.-born unemployed and certain political figures, it is a huge risk at best to move everything, buy houses and import vehicles on a TN-1.

Employment can come and go on an employers whim (thanks to 'at-will' laws) and there's no guarantee a job will last the length of the visa.

As for a governmental support net, forget it. Hard or impossible to get EI, no social assistance, no food stamps, nothing. If your landlord decides to sue you for breaking a lease because you've lost your job and can't get one down-the-road like a LPR or citizen, oh well. Ditto for mortage-holders should you buy a home. Ditto automotive finance companies if you purchased a new car stateside. They don't care. You are held responsible just like a U.S. citizen/LPR, they don't understand or care you cannot just get another job or EI benefits asap. If the state you work in issues you a state DL and takes your Canadian DL, turning it in to the consulate and then you lose your job, oh well. If your employer notifies USCIS as required, you get to drive home without one as they are typically aligned with your 1-94 in expiry.

You then have the stress of having uprooting the family (if they've come down) arranging an expedient move north and dealing with the importation of belongings new (i.e U.S. financed/titled car) and old back into Canada.

As foreign workers, there is no back-up plan, it's a 'get your things and leave NOW' policy with USCIS. They don't care, they are not accountable to us as foreign nationals. We are a temporary means to an end for an American employer and there are CBP officers who begrudge our ability under NAFTA to get work authorization in the U.S., even when we meet all the criteria as detailed in the NAFTA agreement. They have the ability to interpret the rules however they see fit, even if we don't always agree.

You best have the financial means in place for a move back north should your job end. You really need to think long and hard about such a move and weigh all the scenarios and their impact on your family. While it can be an exciting experience for you and your family, we've all read about or lived the horror stories of rejected renewals and job loss. I think it's important not to 'romanticize' living and working in the states under a TN-1. It can be as heartbreaking as it can be rewarding.

I don't mean to sound negative about the 'American experience', but having been through a rejection at Detroit (and the subsequent 30-days to "get my things and get out") experience, it would make me very hesitant to make any such commitment to moving my world to the U.S. without an 'intent to immigrate' approved form of visa, either employer-sponsored or by marriage.

SarniaGrl, I am sorry to hear about your experience in the US. That is very common. Even for those who have not (yet) been rejected, TN-1 is a very stressful status to be in. I agree with everythying you said, except two things.

First of all, it is not that hard to claim American UI. I have a post in the "Is TN qualify for Unemployment Insurance?" thread with info on that.

Secondly, it is not so hard to bring your stuff back to Canada from the US, if CBP lets you back in the US to get it back. The first thing I would recommend is to declare what you are taking with you to the US when you go work there. That takes care of the "Canadian goods returning" part of your belongings. If you don't do that, it is ok, declare them on the way back, they probably won't make a fuss over it. Then you can declare the goods you bought while in the US. If you were working in the US for more than a year, you have a customs free allowance of CDN $10,000.00 per item. So that should be enough to bring most or all the things you bought. Generally speaking the Canadian border people are a lot easier to deal with than the American ones, not just to us Canadians, but also for Americans. They will probably understand your situation of being forced back and will try to accomodate you. They may even show some sympathy for your situation, and try to make it as easy as possible for you. You may have to pay GST on any item you bought that is over $10,000.00 CDN in value (depreciated value), but only on the amount over CDN $10,000.00.

If a CBS officer tells you that you cannot go back to the US to get your stuff ask him why, and what you can do to go back to the US to get it back. If he does not offer you any reasonable choices, then ask to speak with the shift supervisor. Shift supervisors are usually much easier to deal with than the angry front line guy who is trying to mess up your life.

Hi there,

I had worked in the U.S. for four years, I know everyone has different experiences, but had I known then what I know now, I would've seriously re-thought things. I would recommend anyone heading south consider all the implications and research and read.

Like you had mentioned, American attorneys cannot only lighten your wallet, they can mess things up for you bad - and you are the one with the red-flag on the record for their screw-ups. The most recent experience has seen a 1-129 expedite get messed up so bad, it's been nearly six months of grief with USCIS, and the job was gone months ago. If you do get an attorney, make sure they are qualified by membership in the appropriate governing body for immigration attorneys.

I've not had too much issue with returning to Canada with belongings (except a US financed car which I couldn't import, it was returned to the US) and have had the paperwork filled out beforehand. The worst was my last trip to move things back, the Canadian primary inspector actually raised his voice and made a fuss out of not only where I resided (he didn't care if Canada was my tax home - and told me so) but of the fact I had a Canadian plated car (less than a year out of country) among other things. Telling him I was a returning TN-1 didn't help, it seemed to make things worse. At secondary it was a simple stamping of my paperwork with no problem, although they couldn't understand why primary would note I needed to import my car. As for residency, upon further checking, there are two or three(?) different interpretations of residency, CBSA, CCRA, the third escapes me, but each agency has a differing opinion, therefore each requires a different answer.

As for the American side, being refused a renewal turned into a huge headache. After a thorough dressing-down for having an American DL (among other things like a financed/titled car, etc.) by CBP (they couldn't believe I had an American DL, one officer actually yelled at me across the desk about that, even after explaining how it worked in the state that issued it), the supervisor stepped in and issued a 30-day visa to get my things and sell what I couldn't get home, including a home if I'd bought one. That's where I get nervous reading about buying a home in the U.S. while on a TN-1. I know the reaction I got that day without owning a home in the states,just having American ID and all seemed to tweak them I had intent, which I didn't. After that day, it's something I would never entertain doing.

I had thirty days - and had to provide proof in the form of copies of cancelled accounts, surrendered American DL (registered postage to the StateDMV) as proof that I had complied with the directive. I did what I was told and I've since gotten TN-1's successfully, but the novelty of working stateside has certainly diminished in my eyes.

I would recommend anyone contemplating taking a job under TN-1 to have a contingency plan in place as your job or visa are not set in stone and your status in the states could change anytime as a result of job loss, renewal refusal, or being denied re-entry due to perceived intent.

I had read the thread on EI and in the times I could've used it, was told I wasn't eligible as I was a 'temporary' worker without status once my job was done, so I never pursued it any further. As for the Canadian side, I had never thought to ask about it as it was a U.S. job. It is an interesting read, though, and something I wish I would have known about then.

That's why I just don't like the TN1 at all. There is just too much of your life up in the air contingent upon the mood and whim of some cranky US CBP. I've seen far too many stories about Canadians denied new TNs after they've settled their family in the US for a decade and have no life remaining in Canada. Or they've got a US job offer, so they sell their home and everything in Canada, drive to the border and then are refused, with nothing to go back to.

I honestly never did understand the "novelty" of wanting to live and work in the US. Especially not on such a precarious status as TN. To each their own I guess.

Hi Reba,

In my case, the industry I work in (horticulture) tends to be very seasonal at home, it's GLH for nine months if you're lucky, then a four month layoff. When I was offered a job stateside (year-round in Charlotte,NC) it appealed not only as it was year-round, it was also an opportunity to learn more about the industry from a different angle, not to mention USDA growing zone. While it has been great in that aspect, not being able to feel settled isn't something I'd entertain again.

I honestly never did understand the "novelty" of wanting to live and work in the US. Especially not on such a precarious status as TN. To each their own I guess.

For me, and for others I've talked to on TNs, it's not so much about the "novelty" factor as it is about just better opportunities. In my field for example, even when the economy was doing better there just weren't a lot of job opportunities for recent university graduates in Canada. The field is largely dominated by people who refuse to retire, or refuse to hire people who are just starting out in their careers. It's not like that in the US. Yes, it's a "precarious" status to be in at times, but at least I'm being recognized in my field down here. Not so back home. I feel like Canada drives away its talent at times. I am only speaking about my field in general, and I don't know how it is in other fields, but it seems to be a recurring theme with people that I've talked to on TNs down here.

You are the one who has it backwards Steve.

Nope, I've got it right, you didn't read those sections I quoted carefully enough. It says quite clearly in 8 USC 1101(a)(15)(H) that a person must maintain a residence abroad. Subsection (H) is for H visas.

8 USC 1184(e) is the legal basis for the regulations under which people are allowed in under TN-1. Those regulations are 8 CFR 214.6 which says:

Temporary entry, as defined in the NAFTA, means entry without the intent to establish permanent residence. The alien must satisfy the inspecting immigration officer that the proposed stay is temporary. A temporary period has a reasonable, finite end that does not equate to permanent residence. In order to establish that the alien's entry will be temporary, the alien must demonstrate to the satisfaction of the inspecting immigration officer that his or her work assignment in the United States will end at a predictable time and that he or she will depart upon completion of the assignment.

Now an abode abroad will demonstrate that, but it's not as etched in stone as it is for H-1B which specifically says the alien must have an abode they have no intention of abandoning abroad. BTW, TN-1 is now three years maximum, not one.

You can just move in to the US with an H1B, and leave your foreign resdence

No you can't, that is one of the things they specifically look for when doing AOS.

I've got to say although I'm always commenting on people's posts on here, from a personal standpoint having done the H-1B thing I personally think moving anywhere on any type of work permit such as H-1B, TN-1, whatever is a bad move unless you really are okay with the idea that it is a temporary assignment.

People are always on here asking about the technicalities of doing it but not often the logic of doing it.

Essentially you are tied down to that employer and cannot easily change jobs. The one thing TN-1 does have going for it as far as I can see is that it is relatively easy to change jobs because the employer only needs to give you a job offer letter.

Actually going to PR status from H-1B or TN-1 or anything is not a simple process. Yes it is slightly easier from H-1B but it's not easy.

But frankly the lesson I learned many years ago is that work permits of any type SUCK. I would never work anywhere ever again on a work permit unless I was 100% sure it would lead to some sort of permanent status quickly (which is next to impossible in the US unless you're EB-1 or maybe EB-2) or I was 100% sure I was okay with it being something I only did for a few years.

Too many people move somewhere on a work permit and have no actual plan on what to do next.

Steve, listen dude, do a search for "dual intent h1b" (without the quotes) on Google and read through the results, which include legal firms and employers. H1Bs are dual intent visas. It is both a non-immigrant and an immigrant visa. Also, as of 2000,when one has been on H1Bs for the maximum 6 years, one still retains status in the US even after it has expired, even if the green card process is not complete and there are no more H1B extensions available. On an H1B you do not have to keep a foreign residence, as it is ALSO an immigrant visa. I have spoken with lawyers, people on H1Bs, and even immigration officers on the border about it, and there is no controversy about that statement.

As for quoting statutes, that is great. However, as I mentioned earlier, in the US, the memos issued by USCIS lawyers that make their way to the Field Supervisors' Manual are effectively the law. You must look at how those have decided to interpret or even modify the statute that Congress passed.

NAFTA is not just a statute that Congress passed. It is a treaty with Canada. Canadians have a right to expect it will be enforced as written. Sadly Canada is not going to do anything about US Schedule II violations. Canada will only challenge US violations of the NAFTA agreement if it affects the well connected rich. People who go on TN-1s are working people. The Canadian government is not going to lift a finger for us. We are on our own.

Yes I made a mistake, I was confused between H-1 and H-2 (which does require proof of an abode abroad), but basically we were both wrong, neither H-1B or TN-1 require proof of an abode abroad. It helps establish non-immigrant intent for TN-1 but it's not strictly necessary. (I seemed to recall some mention of an abode abroad back when I changed status but this is what happens when you use your memory rather than looking it up!)

However on the general point like I said above, I think too many people worry about how they're going to get a work permit and not enough about whether it's a good idea or not.

The one that got me was that the company I worked for went bust, well there's nothing you can do about that. Work permits just basically suck and I swore then I would never work on one again unless I was absolutely certain I was okay with it being temporary.

If you want to get into treaty provisions try talking to the IRS about filing requirements for people on TN-1. Treaties are technically the "supreme law of the land" but obviously there can be multiple treaties, in this case NAFTA and the tax treaty and they have an order of importance; however the tax treaty has been amended various times since NAFTA which muddies the water. Plus as you point out it's not clear that the NAFTA Implementation Act actually jives with what what the NAFTA treaty says, plus the regulations made under 8 USC 1184(e) are not entirely consistent with NAFTA either.

So do the free movement of labour provisions of NAFTA override the residency provisions in the tax treaty or does the tax treaty override NAFTA (since they have been amended since NAFTA and both the US and Canada agreed to them) or are they consistent with each other?

It's very hard to interpret how US tax laws apply in certain situations as a result. The IRS basically said to me it would be up to a court to decide.

Thanks Steve for illustrating some of the conflicts between the different treaties, and their US implementations. However, I was under he impression that tax status and immigration status are seen as not being the same, nor even related, by the different agencies involved (IRS, USCIS). For example, the IRS would consider a person working on a TN-1 a resident, USCIS does not consider him a resident. And they do not see any contradiction in that. Maybe there really is no reason to couple immigration and tax residence status together, even if they use the same word "resident." They mean different things by it. Therefore, the tax treaties do not have to conflict with the immigration treaty provisions of NAFTA.

Regarding the US implementation of NAFTA Schedule II, I wonder if there is a way for Canadians to start a class action lawsuit. I am sure that the losses Canadian workers have taken because of inconsistent implementations of NAFTA (both inconsistent from case to case, and inconsistent with NAFTA) amount to billions of dollars. They include lost wages, lost stock options, lost opportunities, expenses to relocate to Canada. If a US company was treated by Canada half as bad as we have been treatd by the US, they would be taking Canada to the NAFTA tribunal and winning all of their losses back.