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Our company is thinking about hiring a TN visa applicant. What requirements would hiring a TN visa applicant place on our company, if any?

By December 8, 2020March 11th, 2021Immigration, TN Visa

What are the obligations placed on the TN employer?

The Trade National, or “TN,” visa is an excellent option for Canadian or Mexican nationals in specific occupations to temporarily work for an employer in the United States. The visa is relatively easy to apply for and has a relatively high approval rate (though past approval rates are no indication of future success). We have successfully helped many individuals receive TN visas – in fact, our founder was on a TN visa for more than a decade.

But what requirements are placed on the business that plans to employ a TN visa applicant? In short, the TN employer is not subject to any additional reporting or other compliance requirements as a result of hiring an employee on a TN visa.

Must the employer “sponsor” me for a TN visa?

No, sponsorship is not required for the TN visa. It is important to first dispel the idea that the TN employer must “sponsor” the TN visa applicant. Sponsorship is generally required in the H-1B and green card context, and essentially requires the employer, in those contexts, to file a petition with the U.S. government and, furthermore, to comply with a number of requirements, including advertising the job and paying specific wage rates. These requirements do not apply to the employer of a TN visa holder. For more information, see here .

Must the employer recruit for U.S. workers before hiring a TN visa applicant? Is there any reporting requirement?

No, the employer is not required to advertise the position or to recruit U.S. workers for the position. There is also no reporting requirement as a result of employing a TN visa holder.

Must the employer pay a prevailing wage to the TN employee?

No. The Dept. of Labor’s prevailing wage requirement does not apply to TN visa employees. The employer would be required to comply with all standard federal, state, and local minimum wage laws that generally apply to employers.

Note that the government officer reviewing the TN application will likely expect that the applicant’s pay be consistent with what is generally paid to others in the profession. This should be taken into account when drafting the employment letter (described below).

Must the employer pay the filing fees?

No, the employer is not required to pay the filing fees. In contrast to options in which the employer sponsors the worker (for example, the H-1B visa), there is no prohibition on the employee paying the filing fees for a TN visa.

What requirements do apply to a company that hires a TN visa applicant?

The TN visa applicant will need to provide to the government a letter from the employer in which the employer states that the TN applicant will be working temporarily in an occupation listed in the TN regulations, that the individual will be performing job duties that are consistent with the occupation, and that the individual is actually qualified to work in that occupation. The letter should also state a clear start and end date of employment. For more information on which occupations qualify, and the requirements for each, see here .

If the TN applicant is applying through USCIS, the employer may also need to sign the petition (Form I-129).

Is this letter binding on the employer? Is it a contract?

No. The employment of the TN applicant is not bound by the letter. In general, the TN employee, as with most employees, can be terminated at-will.

 

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