TN Refused if US Unemployment Rises?

I have a job offer (Dir. of Eng.) that will likely last 3-5 years.

1) Assuming everything is going well with the job, what are the chances of not having the TN renewed because someone is having a bad day or US unemployment rises? I am trying to determine the risk having to leave if the TN is rejected.

2) What is the best crossing for TN Application from the GTA (Sarnia, Pearson, Buffalo, etc.). I have the choice of either land or air.

3) Once I have a TN is it OK to return to Canada monthly; i.e. some of my family will remain here and I do not want to get refused entry on one of the return trips.

4) Is it better to retain an immigration lawyer in the locally US or in Canada or near the preferred crossing?

If you are an Engineer, degreed or member of provincial order, and are doing Engineering work for a US employer, assuming you have no ownership of the US company, don't worry about US unemployment as long as you are not getting the Pink slip, you will be fine. Letter of employment must specify 1 year offer of employment as that is all a TN can be at this point. Obtaining a lawyer for a TN application as simple as an Engineer would be a waste of money. If you want to throw away your money let me know where so I can pick it up. seriously, engineer TN applications are straight forward. Don't let these lawyers convince you otherwise. Simple, easy, no problems at any Border assuming the first sentence is true.

Appreciate the info. good to know.

I am actually a Scientific Technologist - Electronics; i.e. not an engineer but fitting the TN Technologist category, with a college diploma, an MBA-IT post-grad degree, and a member of OACETT for 15+ years (Ontario Association of Certifed Engineering Technologists).

Assuming all the paperwork was correct, assume your same comments apply; i.e. still easy to do?

Thanks for the perspective.

none of my previous comments apply, Scientific tech must show theoretical knowlegde of one of the listed sciences, electrical engineering would suffice, but if your job offer is director of engineering I cannot see how you would qualify as a scientific technologist as per NAFTA agreement, a sci tech must work in direct support of a degreed professional in the same science that you have theoretical knowledge of. as director of engineering how could you work in direct support of anyone, you are the director. If the CBP Officer followed the Law to the tee he could deny you as your job description would not qualify as sci tech, to be director of engineering you should have engineering degree and apply as Engineer, not sci tech.

You want to be member of the PEO.

Hhhmmm, I have been working in engineering management positions for ~15 years and in the new position would be building/managing a manufacturing engineering and R&D team; i.e. it is a management position and I won’t be doing any engineering myself.

So is a management or director category more appropriate, or not really under the TN?

Again, thanks for the perspective.

CBP first question will be: Are you an Engineer? As I said sci tech must work in direct support of a degreed professional.

Wait and see if you receive different advise on this site.
Possibly an L-1 are you currently working for the company you are getting the new position with? intercompany transfer. Good Luck, just don't try Management Consultant under TN as you are applying as a Manager application would be Fraudulent. Many lawyers try to fit unclear applications under this with a very vague employment letter, and list of duties that could be seen as misleading if your true job is Director of Engineering. Just some advice if you do consult a lawyer and he throws that Profession at you.

best of luck.

There is no labour certification for TN-1, so how much unemployment there is in the US is academic for immigration purposes (obviously you might get laid off though).

The US government will interpret and reinterpret the NAFTA agreement, like all of their international treaties, as it suits them at the time. That includes Schedule II visas (i.e., TN-1). Therefore, they will make it very restrictive during a recession to get one, even though they are not supposed to do that. Schedule II of NAFTA is nowhere near as restrictive as the US's TN-1 implementation of it. Among the restrictions Americans added to TN-1 visas is that you have to work for a US company as an employee of that company. There is nothing in NAFTA allowing them to impose that requirement. One should be able to work as independent contractors or as employees of a company registered in Canada.

Schedule II also has some general and some specific requirements for education and experience from Canadians. The US TN-1 Visas have some vague requirements of a "related" degree or diploma for EVERY category, even for those that do not require a degree or diploma under Schedule II, such as Scientific Tech. To make matters worse, a Canadian applicant's qualifications will be assessed by a US border officer, as the applicant crosses the border, that knows nothing about the profession they are assessing.

Other restrictions include using the US Department of Labor's description of professions as a means of deciding whether the work you will be doing in the US qualifies under NAFTA. For example, if you will be programming computers in your intended US job, then you do NOT qualify for a TN-1 visa as a Computer Systems Analyst, as there is no mention of computer programming in the US Department of Labor's description of "Computer Systems Analyst." Yet they require a Computer Science degree or diploma, even though those usually certify that you were trained as a programmer. Moreover, if you have a Computer Science diploma, they will require also 3 years experience, even though Schedule II for Canadians only requires two years of post secondary education. For Mexicans it requires the 2 years of post secondary education and three years experience. TN-1's, however, are for Canadians only. TN-2s are for Mexicans.

They will also say that you must keep a Canadian residence while you are working in the US. There is nothing in NAFTA about that either. If you cross the border back and forth, you will be asked "where do you live?". They know that, as a TN-1 worker, you live in the US, and they will treat you as a US resident for customs and tax purposes. Yet, if you say you live in the US they will give you a lot of hassle, and may even revoke your TN-1 visa on the spot if they feel like it.

They also officially require that an TN-1 applicants be going to work (as in right now going into the office) when they apply for a TN-1 visa. This is not usually enforced, but it is further ammo in case they want to deny you access to the US.

Given the way in which NAFTA's Schedule II visas are implemented by the US, likely they will always have something on you. So the chances of you being refused re-entry or a new TN-1 visa when the old one is about to expire, are very high.

You may get the nicest boder officer the first time you get a TN-1 visa who will asure you that you have a great application. But when you go to get another TN-1 for the next year, or the year after that, you may get someone else who will deny it to you.

On top of that, if they refuse you re-entry, as in refusing you a new (renewal) TN-1 at the border, you will be fingerprinted, and phorgraphed, and put on a blacklist that may last for several months, or even a year. Which means that, for a long time, when you cross the border, you will have to go into secondary inspection (i.e., go inside), your car may be searched and vandalized, they will demand papers from you showing that you have established residence in Canada, such as you bank statements, rent lease, receipts of things you have bought. That would make it very uncomfortable to keep in touch with the friends you made in the US. You will go from being best friends with US border officers to being their enemy at the whim of the border officer you got when you went to apply for a TN-1 visa.

As for getting a lawyer, they are vultures. They charge astronomical amounts of money, and they often lack even the most common knowledge of how to apply for TN-1 visas. Sometimes a lawyer can mess things up worse than if you did it yourself, as they are overconfident and usually ignorant. And if they mess up, that is not their problem. It is yours. You will be the one blacklisted, not them. After reading some of the forums on TN-1 visas, you will likely be far more knowledgeable than any lawyer that wants to take your money. Moreover, as you can only apply for a first TN-1 Visa on the border, you are not entitled to, or usually even allowed, legal repressentation when you apply. So a lawyer canot do much besides helping you put the application together, assumingthey know how to do that. If you do get in touch with a lawyer, do not be impressed by their assurances that you have a great case, or that you suffered a great injustice that must be remedied. They are just trying to take your money. Learn about the process yourself.

As Canadians we have the right to expect the NAFTA agreement to be implemented by the US as written. Sadly, the US gets to do whatever they want. The Canadian government is not interested in helping Canadian workers who want to exercise our right to work in the US under NAFTA. So do not expect Canada to bring it up on the NAFTA tribunal. To be fair, Canada cannot get the US to abide by NAFTA, or any other treaty it does not want to comply with, even when it wants to (e.g., Softwood Lumber).

My advice to you is that unless you are receiving a huge increase in pay for working in the US, at least over three times as much as you make now, then do not go to the US under a TN-1 visa. You are exposing yourself, your finances, and your career to a lot of grief. Getting a H1B is slightly better, but only because they will not require you to keep a Canadian residence, so you would not have to deal with that specific mind game. Also they last for three years, which means you do not have to endure the expense and stress of going to the border every year to get a new TN-1. However, with an H1B, you would still be tied to one employer, and would have to leave the US if you loose your job. Moreover, there are plenty of opportunities for professional and financial advancement in Canada, you just have to look for them and take them.

They will also say that you must keep a Canadian residence while you are working in the US.

That's not actually the case, the FAM and the law make it clear there is no requirement, but some CBP officers think there is a requirement for this. The law requires the stay to be "temporary" which means evidence you're going to leave - but that's not the same as evidence you live abroad.

H-1B is the one that requires proof of abode abroad actually, have a read of 8 USC 1184(e) and 8 USC 1101(a)(15)(H).

You are the one who has it backwards Steve.

The reason why USCIS expects TN-1 visa holders to keep residence abroad is that TN-1s are not immigrant visas. They are temporary work visas. You could keep on getting new, yearly, TN-1s the rest of your life, and they will not lead to permanent resident status (green card). Therefore they expect you to keep a residence abroad, and not fully move in to the US.

H1B visas, on the other hand, are dual intent visas. They are temporary work visas. But, over time, they lead to permanent resident status. Therefore, it is both an non-immigrant and an immigrant visa. You can just move in to the US with an H1B, and leave your foreign resdence.

Having said that, like many other TN-1 regulations, they only matter when they want to screw you over. 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. It is just one of many mind games that they play to make sure that they always have something on you in case they want to screw you over. Very few people would live and work full time in the US and keep a vacant residence abroad, and USCIS knows that.

I have looked at 8 USC 1184(e) and it says that TN-1s are not immigrant visas. 8 USC 1101(a)(15)(H) seems to have no mention of TN-1 visas. Maybe you could actually quote the relevant text to support your argument.

The important thing to notice is that in the US, agencies like USCIS get a lot of leway for interpreting the statutes they have to enforce. That was upheld by the US Supreme Court way back (can't memember the case name). USCIS lawyers issue memos that get added to the Field Supervisors Manual, and they are, for all intents and purposes, the law. Having said that, the US Supreme Court is within its rights to delegate interpretation of US Statutes to each agency. However, it has no right to allow its government agencies to interpret, distort, add conditions, and re-interpret international treaties like NAFTA.