The TN visa, which was originally created through the North American Free Trade Agreement (NAFTA), is one of the most popular visa options for nationals of Canada and Mexico to enter the U.S. to work for a U.S. employer. This is for good reason — the application process is relatively simple and fast, the visa permits a stay of up to three years at a time, and there is no limit to the number of times it can be renewed.
As described here, nationals of Mexico are generally required to apply for a TN visa at a consulate. This is in contrast to nationals of Canada, who are able to apply for TN status at a port of entry.
There is some confusion as to whether there are circumstances under which a national of Mexico can apply for TN status at a port of entry, in the way that Canadians can. In this blog post, we take a look at the source of this confusion and get to the bottom of what Mexican nationals should keep in mind.
Conflicting Guidance
U.S. Customs and Border Protection (CBP), the government agency that is charged with reviewing TN visa holders and other individuals who seek to enter the United States, has made public statements suggesting that a national of Mexico who already possesses a valid TN visa can change employers by leaving the U.S. and applying for reentry at a port of entry with their existing visa and a TN application letter from their new employer. This seems to be consistent with the government’s statements (such as here) making clear that the TN visa is not specific to an employer. This concept that the TN visa is not employer-specific is also reflected in the Foreign Affairs Manual at 9 FAM 402.17-5(A), here.
Unfortunately, these statements by CBP do not always match what CBP officers do in practice. There are instances in which individual CBP officers have refused to admit nationals of Mexico who are seeking to re-enter the US with a valid visa, but to work for a new TN employer.
This position could arguably be based on the idea that CBP is not empowered to adjudicate TN applications for nationals of Mexico. This issue would not come up for nationals of Canada, who are visa exempt. CBP’s inability to adjudicate TN applications for nationals of Mexico is reflected in the regulations at 8 CFR 214.6(i)(2), for example. This inability could also be why the government’s statements cited before (here) suggest that someone who has a TN visa and is changing employers should keep their I-797 approval notice – the individual would only have an I-797 approval notice if their change of employment was already adjudicated and approved by USCIS.
The Recommended Approach
In light of the apparent confusion behind whether a Mexican national can be admitted by CBP when they have a valid TN visa and are seeking re-entry in order to work for a new employer, it is recommended that the individual first receive approval to work for the new employer. Ideally, this approval would come from a consulate, which carries the least risk of rejection by a CBP officer.
To apply at a consulate, the individual would file a Form DS-160 online and would specify that they are applying for a TN visa in order to work for a new TN employer. The applicant will want to bring to their interview the necessary supporting documentation that supports employment for the new employer.
Similarly, the applicant, if they are physically inside the U.S., may apply to work for the new employer through USCIS. To do so, the new TN employer must file a Form I-129 (petition for a nonimmigrant worker). On this form, they would specify that the TN worker is seeking TN status in order to work for a new employer. They would include all required supporting documentation for the new employer. Note that there is some risk that a CBP officer could ignore USCIS’s approval of the new employment; for this reason, it is generally recommended that the applicant secure an approval to work for the new employer from a consulate, if feasible.
At Scott Legal, P.C. we’ve helped countless clients successfully apply for TN visas, change employers, and address complex border scenarios. If you are a Mexican or Canadian national considering a TN visa, or if you already hold one and are planning a job transition, we encourage you to schedule a consultation with us. We’ll walk you through the process, help you assess your best options, and ensure your application is as strong and risk-free as possible.
