What impact will the Biden/Harris administration have on TN visa? What changes did the Trump administration make with regards to TN visa?

TN visa is a visa that is based on an agreement between Canada, Mexico and the U.S.  It allows certain professions (for example lawyers, accountants, graphic designers, researchers, engineers) to easily obtain employment in the U.S. Please see more about the TN visa when you click here.

TN Economist Policy Memorandum

One significant Memorandum that was issued during the Trump administration was the USCIS Policy Memorandum clarifying the TN Economist category.

This Memorandum clarifies who can apply under the TN Economist category and the Memorandum’s purpose was to distinguish between the position of economist versus the position of financial analyst, market research analyst and marketing specialist.

While the Memorandum conceded that economists and financial analysts are related occupations, “financial analysts primarily conduct quantitative analyses of information affecting investment programs of public or private institutions.”

The Memorandum the further describes who can qualify under the Economist category:

 

• Economists generally specialize in either microeconomics (analyzing the behavior of individuals and firms with the aim of understanding the relationships between supply and demand) or macroeconomics (analyzing aggregated indicators to determine how different sectors of the economy relate to each other).

This Memorandum had a huge impact on the TN visa applicants applying under the TN Economist category as it narrowed the definition of who can apply under this category significantly.

Please see the full version of the Policy Memorandum when you click here.

USCIS officers have been applying the same level of scrutiny to both initial and extension TN applications

In 2017, USCIS rescinded its previous guidance regarding deference to prior determinations of eligibility in the Adjudication of Petitions for Extension of Non-immigrant status. Prior to 2017, if the extension petition involved the same parties and the same underlying facts, USCIS deferred to the prior determination of eligibility. In 2017, this changed and USCIS emphasized that the burden of proof to establish that TN employee continues to be eligible for the TN status lays on the petitioner.

USCIS Approval & Request for Evidence rates

Canadian nationals can either apply for a TN visa at the border, or if they are in the U.S., they can apply for a Change of status with USCIS.

Mexican national can either apply for a TN visa at the U.S. Consulate abroad, or if they are in the U.S. they can apply for a change of status with USCIS.

Please see below the USCIS Approval and Request for Evidence (“RFE”) statistics for TN applications that were filed in the U.S. between 2016-2020.

In 2016, the TN approval rate was 90.7% and RFE was issued in 23.6% cases.

In 2017, the TN approval rate was 91.6% and 7RFE was issued in 22% cases.

 In 2018, the TN approval rate was 88.2% and RFE was issued in 28.2% of cases.

In 2019, the TN approval rate was 89.8% and RFE was issued in 24.5% cases.

In 2020, the TN approval rate was 90.5% and RFE was issued in 23.1% cases.

USMCA & NAFTA agreements

In October 2018, the U.S., Mexico, and Canada reached agreement called USMCA (“United States Mexico Canada Agreement”) to replace the North American Free Trade Agreement (NAFTA). This new agreement contains a labor mobility provision, a very similar provision that was in the original NAFTA agreement. The new USMCA agreement entered into force on July 1, 2020. This new agreement did not affect the TN visa much as all the TN categories remained on the list and no significant changes were made to the TN visa classification.

Covid-19 & U.S. Canada and Mexico Land Border Closure

On, March 23, 2020, the U.S. closed its land border with Canada and Mexico for all non-essential travel across the border. There are numerous exceptions to this rule and one of the exceptions is for travelers who are travelling from Canada or Mexico to the U.S. because of work.

As state above, only Canadian nationals can apply for a TN visa at the land border. TN visa applicants who want to apply for a TN visa at the land border should call the Port of Entry before they travel to make sure that the port of entry is currently processing TN visa applications. Alternatively, Canadian TN visa applicants may always fly to the U.S. and apply for the TN visa at the pre-clearance locations at certain Canadian airports. Please see the list of pre-clearance locations when you click here.

Mexican Nationals & Applying for a TN visa at a Consulate

As state above, Mexican nationals can either apply for a TN visa at a U.S. Consulate or if they are in the U.S., they can apply for a change of status with USCIS.

In March 2020, the U.S. Consulates abroad suspended routine visa services. While some Consulates started resuming the visa processing in July, it is still taking several weeks/months for visa applicants to get an interview appointment at a Consulate due to backlogs. Therefore, Mexican nationals who are currently outside the U.S. and want to apply for a TN visa may submit their TN application, but it may take a while until they are called for an interview.

The new administration & TN visa

Many of our clients want to know what changes (if any the new administration will make with regards to TN visa.

With regards to the Economist Memorandum: we don’t think that the new administration will rescind this Memorandum immediately, as the Memorandum affects only small percentage of TN Visa applicants (those applying under the Economist category). Therefore, it may not be on the list of priorities for the new administration.

With regards to approval rates & RFE rates: Most of Canadians nationals apply for the TN visa at the border and most Mexican nationals apply for the visa at a Consulate. From the statistics above, we can see that the approval rate for TN visas went down 1-2% from 2016 until 2020. The request for evidence (RFE) rate went up significantly in 2018 but is currently around the same as it was in 2016. We think that the approval rate will probably still about the same and the RFE rate may be a bit lower or stay the same.

With regards to the land border closure: we think that the new administration will re-evaluate if the Covid-19 cases in Canada and Mexico are rising/declining, but we think that the land border may stay closed for a while. As mentioned above, Canadian nationals should still be able to enter via land border and can also apply for the TN visa at the airport, so the land border does not really affect Canadian TN visa applicants. Mexican nationals cannot apply for a TN visa at border like Canadian nationals, so the land border closure does not affect Mexican TN visa applicants.

With regards to Consular processing for Mexican nationals: each Consulate has a different procedure as to re-opening and resuming routine visa processing. As indicate above, Consulates started re-opening in July 2020, but each Consulate has a different procedure/timeline for re-opening depending on if the Covid-19 cases are declining/rising in a particular country. The new administration will most likely not speed up the Consulates re-opening as it depends on the situation in each particular country and each Consulate is in the best position to evaluate if it’s safe to resume the routing visa processing and to what extent.