Can a TN employer file a TN application for an employee who is outside the US?

The TN visa is a popular option for nationals of Canada and Mexico to live and work in the United States, and for good reason – the application process is relatively simple and straightforward, it can provide up to three years of status and can be renewed indefinitely, and it places minimal obligations on the employer (see our blog post on how the TN visa does not require sponsorship here, and our video on this topic here).

Usually, a Canadian citizen who is applying for a TN visa would do so by submitting their application at a port of entry. They may also apply at a consulate, though the convenience of applying at a port of entry makes the consular route an option that is rarely chosen. Mexican citizens do not have the option of applying at a port of entry, so those who are outside the US must apply for a TN visa at a consulate.

Another option available to TN applicants who are inside the US is to apply through USCIS. This requires the TN employer filing a Form I-129 with supporting documents to USCIS. Once the application is approved, the TN employee is able to begin working for the employer.

For Canadians, there is an additional option that is both rarely known and rarely exercised: the TN employer can submit the TN application (the Form I-129 and supporting documents, along with the filing fee) to USCIS while the prospective employee is outside the United States. The employer has the option of choosing premium processing, which guarantees a response from USCIS within two weeks of submitting the application in exchange for payment of the premium processing fee.

Once the I-129 is approved, the prospective TN employer (who, again, is outside the US), would bring the approval notice and their Canadian passport to a port of entry, along with a copy of the I-129 and supporting documentation that was submitted to USCIS. Once the CBP officer reviews the materials, they may admit the applicant into the US in TN nonimmigrant status (typically for a three-year period).

Since Canadians have the option of applying at a port of entry without having applied to USCIS beforehand, there is good reason to wonder when or why an applicant would first submit the application to USCIS.

The downsides of applying to USCIS are several. Among other things, USCIS charges a filing fee that is higher than the fees imposed at a port of entry (currently, the filing fee for a Form I-129 is $460, and premium processing is an additional $2,500). Also, USCIS typically requires at least two weeks to adjudicate the petition, even if premium processing is selected. In contrast, applying at a port of entry provides an immediate decision, and the filing fees are far lower.

However, there are a couple considerations that might weigh in favor of applying through USCIS before approaching the port of entry.

First, applicants who are concerned about a denial at the port of entry might favor the sense of security that comes from USCIS having first approved the petition. This may be particularly relevant if the applicant is applying in an especially challenging TN category, such as Management Consultant or Economist (see here and here for posts specific to these occupational categories). USCIS typically must have a legal basis to deny a petition, which could make the agency less ready to deny a complex application than CBP would be.

Nonetheless, it is important to remember that the border official is not obligated to defer to a USCIS approval – even with a USCIS approval in hand, CBP may still choose to deny the applicant entry.

There may also be times in which the employer prefers to submit the TN application, rather than having the employee do so. In these cases, the employer can submit the application to USCIS even if the prospective employee is outside the US.

In practice, it is rare for a TN employer to submit the I-129 while the prospective employee is outside the US. The option of applying at a port of entry is convenient, and the sense of security offered by a USCIS approval can be an illusion given that CBP has discretion to approve or deny regardless. For Canadians, applying at a port of entry continues to make the most sense for most applicants.