The Immigration Guy

Is the TN Visa Right for You?

August 24, 2022 Season 1 Episode 3
The Immigration Guy
Is the TN Visa Right for You?
Show Notes Transcript

This week on The Immigration Guy, Kyle compares the TN visa to other immigration visas like the H-2A and H-2B visas. He explains how the TN might be a better fit for your company, and answers some listener questions about turnaround time and if you should post the position on your website beforehand. 

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**The information provided on this podcast does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available are for general informational purposes only. Listeners of this podcast should contact their attorney to obtain advice with respect to any particular legal matter.  No reader, user, or browser of this site should act or refrain from acting on the basis of information on this site without first seeking legal advice from counsel in the relevant jurisdiction.  Only your individual attorney can provide assurances that the information contained herein – and your interpretation of it – is applicable or appropriate to your particular situation.  Use of, and access to, this podcast or any of the links or resources contained within the description do not create an attorney-client relationship between the listener and Kyle Farmer. **

Produced & Edited By: Drew Tattam

Hey y'all. This is the Immigration Guy with Kyle Farmer.

Welcome back to the Immigration Guy podcast. Happy Wednesday again, this week I was in Iowa, and I thought it was kind of interesting. This was in Iowa. They apparently card you every time you drink beer. And while I was in a restaurant, I got carded. I'm 31 years. I have and, and I don't look like a young 31 at this point.

I look like a 31-year-old that doesn't wear sunscreen. And, uh, this guy carded me. And so, I handed him my carry permit because my driver's license was still in my backpack, I thought. And he said that he didn't think he could take that. So, there was a lot of problems with that. I really wanted a beer. And, uh, I told him that in the state of Iowa with my Texas carry permit, I could walk around with a gun, and a cop would acknowledge and honor my Texas carry permit, but he won it for a beer.

But then he asked his manager and when he came back, I found my driver's license. It was all okay. I got my beer, but I didn't drink it just cause I was too pissed off about him carting me. And I'm 31 years old. But it's fine. He's just trying to keep his job. That's not the point of today's podcast. And in fact, that's not even a, a role that you can fill with the type of visa category.

We're gonna be talking. Which our TN visa says many people have heard of the TN visa says it's very heavily utilized visa category. It's really nice. Uh, it was originally created by NAFTA. It was carried over in the USMCA. It's a, it's a great visa because it's not a two lengthy of an application process.

One of the limiting variables with it is just the availability for the particular occupation that you're after. So, it's made for certain design. Professional level activity, and there's a bunch of degree categories that get you in there. Some examples are accountants, lawyers, computer scientists, biologists, chemists, animal breeders, animal scientists, those sorts of positions.

So, they get used a lot in, uh, Agriculture, they get used a lot in construction. Overall, it is a great visa just cuz there's not a numerical cap to it. There's not a requirement that you file a prevailing wage determination or anything like that for citizens of Mexico. It, it's only available to citizens of Mexico and Canada, uh, because it was created by NAFTA and for the Canadian citizens, they can get their TN issued at the port of.

For Mexican citizens, they actually have to go through the embassy, the, the consulate in Mexico and get approval that way. That's pretty much the only spot where it, where the application process differs between the, the two countries. That has actually made the TN visa application process a little bit more difficult, which I'll kind of go into here in just a little bit.

But that where you see TNs used in agriculture for animal breeders or animal scientists. So, you see this a lot in basically any sort of livestock production. Dairy scientists is also another option, so you see 'em. Oftentimes breeding and caring for, for livestock, caring for in a, in a medical sense is very, very common.

Uh, you can use them in cattle operations, dairy operations, you can use them in pork production. Chicken production, Turkey production. I, I've seen 'em used all over the place. Uh, so they're very highly used in, in agriculture engineers. I see them use regularly in agriculture, but a lot of times engineers are being used in construction.

Uh, so they're, you know, civil engineers and they, they manage construction projects, all that kind of stuff. Uh, it's, so, it's a great, great category for that too. We also see accountants used pretty regularly to be accountants in businesses. It's a. Common usage of 'em and it's, uh, it's great. And just like everything else, it's just nice to have employees that are grateful for the job opportunity and, and just want to do good work and come in the United States.

So not having a numerical cap is a big deal. Other common visa categories that are. Kind of similar to TNs, like H-1Bs, there's a numerical cap to 'em, so it makes 'em far more limited. The application process is a little bit lengthier. So, if you can fit something within the TN category, it's great. Uh, the really, the, the big difference between H-1Bs and TNs are the dual intent element.

So, H-1Bs allow you to have a non-immigrant visa, but also have an intent to immigrate permanently to the us. That's different with TNs. With TNs, it's a non-immigrant visa, so that's pretty important to know. Uh, especially at the beginning of the, the process. There's a whole list of potential categories that, that fit within the TN regulations, and they have different requirements.

Most of 'em require a bachelor's degree. There's a few that you can get. Just experience like management consultant, for example, is a category in the TN regulations that allow you to get the TN visa just based strictly off of experience. It does. It is more difficult. I, I think that the consulate is a little bit more iffy on those than the USCIS.

So sometimes that's a good change of status type of application if the person's here in the United States as opposed to doing it through the consulate, cuz the consulate can be a little bit more difficult on that. And the, the thing about TNs is, the consulate has unlimited authority to approve or deny a TN.

So, if they have deny a TN in at the consulate level, even if it was improperly denied, there is no remedy for that. There's no way to appeal the consulate's decision. All you can do is reapply and they can deny you again. So sometimes it's better to go through the USCIS because there is an ability to appeal if they're not actually abiding by the the regulations.

And I have seen a lot more consistency with the USCIS than I have with the embassy with the TN visa. It's different than the H-2A Visa in that. One, it's for professional level activity, whereas H-2A is generally for just lower-level labor. They're just farm labor. One of the other big differences is the, the seasonal nature of H-2A applications.

Of course, there are other, there's another type of need under H-2A regulations that are temporary need, which isn't dictated by weather patterns. Or some other event, but the, the TN visa says temporary but not seasonal. Temporary, meaning you don't intend on permanently hiring the individual, but it doesn't have to be temporary on the same basis of like being 10 months or less.

That's, that's not a thing with TNs. And you can continue to renew 'em perpetually, so long as the job remains temporary in nature. So, when you can TN visa category is definitely the way to go because the application process is pretty straightforward. But the, one of the problems is that recently the consulate has limited the number of embassies that actually review TN applications.

So, where they were reviewing TN applications at all the consults of Mexico, they limited it. And this has kind of created a big backlog. So, for, for example, if you're booking appointments in July or August for TN people, then TN appointments probably aren't gonna be available until the end of November.

This is a lot different than it was earlier this year. Earlier this year, we would be able to find someone and also process their TN visa within a month, a month to six weeks. And it's not like that anymore just because of the, the embassy appointment available, which has become a, a real struggle, especially for employers that rely heavily on the usage of TN visas, particularly livestock production companies, that that can really become a burden.

That is one thing to consider whenever you're considering using TN visas. But the nice thing is you're gonna need the workers anyway, so you might as well get in line and. Uh, try to, try to get your workers through. There's not a limit on the number of times that you can renew a TN visa, and so even if it takes 'em a few more months to get in here, it's kind of, it's nice because they don't have to go home anytime soon.

It's not like H-2A or H-2B, for example, where every three years they have to be home for 90 days. That's not a thing. TN visas and recently the embassy started this reciprocity fee thing where the TN visa beneficiary can decide if they want a one-year visa or a four-year visa, and they pay the appropriate fees at the consulate at that time.

Now, this hasn't been a perfect system because I've still seen them only issue visas for three years. Whenever the beneficiary pays for four, the goal there is to make it where those can be initial four-year visas, which is really nice because then you don't, it's another year that you don't have to.

Renew the the TN visa and it saves employers a lot of money, so that part's good. All in all, whenever the job is one that can't be filled with TNs, it's usually the first one that I recommend because it does have no numerical cap. The application process is pretty straightforward. The applicant pull is.

Pretty deep. They tend to be really just like other forms of immigration, they, they tend to be great appreciative employees, eager for the job opportunity. It usually ends up working out really well. This is really the first time I've seen issues at the embassy where they're limiting it and it's going back so far.

The other thing that the Embassy's been doing for probably the last year and a half or so is they've been scrutinizing TN visa applications more. That's not to, not to say that they are just arbitrarily denying people, cause I don't think that's the case. But they are heavily scrutinizing these applications and denying applications that they would've accepted historically.

So, it's been getting a little bit tougher, but still remains one of the best, most efficient and most productive visa categories to get legal work authorization for. A number of people that would qualify under those particular categories that were outlined in NAFTA. If you're looking for those specific categories, I think we also have 'em on our website.

So, you can go on our website, and you can look at under the resources tab, we should have the TN occupations, and if not, we'll put it up. Okay, so we have some q and a from some of our listeners. One of 'em is how long does the TN process take? How long should you apply before you feel like you're gonna need the employee?

Well, most employers, practically speaking, actually apply for people when they need 'em and they kind of just make do until they can get their workers. Right now, it's taking about three months for the embassy appointment, which is the, the limiting variable. Earlier this year, we were doing it in four to six weeks.

Right now, it takes about that three months just because you have to book the embassy appointment, but you can't book the embassy appointment until you identify the person. Uh, and you can't book the embassy appointment until, well, I mean, I guess you could, but it's not smart to book the embassy appointment until you verify that the person's actually eligible for a t and.

And so right now it's taking about 90 days. Uh, and and that's probably gonna change somewhat because. The appointments, I would anticipate being pushed out even farther because I haven't got any indication for the consulate that they're gonna open up more appointments at these other embassies. Here's another one.

Do you have to post the job that you're seeking to fill with a TN on your jobs platform before reaching out to apply for a TN application? No, you don't. There's not any kind of advertisement requirement for TNs. I think that it's good to. Because you know, whenever there's an open position, if you can fill it with a US worker, great.

None of the TN visas or other immigrant category visas are intended to displace or take the position of a US worker. So, if you can post on your, on your website, I think it's good too. It's a diligent thing to do. It's consistent with what the intent of the Visa category is, but it's not an application filing requirement.

Okay. If you have any other questions, anything that you would like us to address, you can email 'em to us at media farmer law and I'll be able to get 'em on future podcasts and they can be related to anything. Uh, so feel free to email over any questions that you might have. Okay, this is gonna be fun for all of us.

I think Drew here is going to read headlines with a little bit of subtext. Just to get my initial reaction. Now, I don't have any context of the actual articles. I haven't seen any of these, so my opinions could be terrible, but I will give, uh, my initial response to whatever these are, and this is where Drew knowing me well, probably will bite me in the butt,

All right, are you ready for the first one? Uhhuh. Governor Newsom signs gun. That's good enough. Okay. Sorry. Go ahead. Governor Newsom signs gun law modeled after Texas abortion ban setting up. Sup,

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Supreme Court fight. Yeah. I actually was worried about that whenever the Texas abortion law went into effect was, okay. Well, if the Supreme Court allows Texas to do that, that would establish a precedent for other governments to do that. A perceived. Right. Well, but this is kind of interesting now because now we, there's Supreme Court precedent.

This is the Dobbs decision that there is no constitutional right to abortion. Perhaps that was why. Uh, the Supreme Court didn't put an injunction on the, on the Texas law, uh, because they were intending on doing that with the job's decision to begin with. And so, I, I, I guess there is still a, a mechanism for the Supreme Court to shoot down that California law on guns, which just for background, what, what this law was in Texas is it created civil liability for.

That aided someone in getting an abortion. So, the abortion provider would've been able to be held liable. An Uber driver that drops a woman off at an abortion clinic would've been able to be held liable, and it effectively stopped abortions in in Texas. And that's been the case for a year and a half or so, so well before the Dobbs decision.

Uh, maybe it was, maybe it wasn't quite that long. Maybe a year. I don't know. But anyways, I, I do remember whenever that happened, I was like, oh, I, I don't know how I feel about the Supreme Court saying that's okay, regardless of of my personal opinions on abortion law, just because of the potential implications of other governments using civil liability as a way to.

Constitutional rights, but I think it'll be interesting. Uh, and Drew definitely nailed it with that one because she knows how I feel about. and knows that that is a good reason for me not to live in California, cuz guns and that's not gonna work out well. You and Governor Newsom are not friends. No, no. Me and the old Newsom, I don't think we'd get along well.

he's too pretty. Yeah, he's too pretty. And he likes wine and he, he likes wine. Yeah. Oh gosh. Disgusting. Okay, next one. What Democrats Big new bill would actually do. The climate bill is also a healthcare bill, and it does a few things on taxes. Yeah, I'm sure it does a few things on taxes. Oh God, yeah. This is a good one.

Thanks. True. Uh, this is, yes, the whole, I, I don't know what the Democrat's new Climate bill is, but I would enjoy. Reading it. Wait, will you, will you read me that whole thing again? It helps with healthcare, what Democrats big new bill would actually do. The climate bill is also a healthcare bill, and it does a few things on taxes too.

they, yeah. Everything's a healthcare, no specific thing. Everything's a healthcare issue. It's like you can't No. California gun law modeled after Texas Abortion law is a healthcare bill too. That's the stupidest thing I've ever heard in my life. But that's, I'm, that's a, you know, I'm sure it does a few things on taxes, I'm sure.

I'm sure it does a few things on taxes. Okay, next one. Biden administration offers convicted Russian arms dealer in exchange for Griner. Oh, if that's how you pronounce her name, man. Russia gets back in arms dealer, and we get back a WNBA player. That's a good deal. I'm all for trying to get her back.

Yeah. In the United States, but a Russians arms dealer. Did we not have like a Russian person that possessed weed in Texas or something? Come on. That's just, that's just whooping our butt negotiations right there. Yeah. Maybe we could get Brittney Grimer and one other person. Yeah, two people for the arms dealer.

For the arms dealer. Does Russia want the arms dealer back? I get why we want her back. I don't know why they'd want their arms dealer back. I'm gonna be honest, I only read the titles as. So, I don't know if Russia said yes or, or how that ended. Hopefully it's in a headline next week, hopefully. Okay, next one.

Beavers are heatwave heroes. Animals don't have ac, but they have beavers. Nice. Well, okay. The thing about beavers is not only are they heat hero, they're also absolutely adorable. And if you don't like beavers, there's just something wrong with you. I was gonna say, what beaver facts. Do you know? I don't know any beaver facts other than, golly, they're precious.

I'm sure there's a lot of people that disagree with me where they probably cause harm to their property, but from me looking at it afar, huh? They're so cute. Do you have any beavers on your property? No, because this is central Texas. Okay. Do they not live here? No. Okay, next one. How Germany is kicking its meat habit.

Germany has made itself an outlier in global meat consumption by embracing plant-based food and politics. Yeah, Germany has a lot of really good ideas. Don't think that following in Germany's footsteps just generally for the last a hundred years is probably a good idea. They are also the genius. That were leading the way with their quote unquote green policy, until they realized that they still needed carbon-based fossil fuels to power their country.

So, they started importing a bunch of dirty Russian oil, and then now whenever Russia fades Ukraine, they can put a good stranglehold on Germany. So, I'm gonna go ahead and guess just based off of Germany's history, I would be against a revolution. that deprived people of meat. That's a really good segue into the next headline.

Kyiv and Moscow agree to resume Ukraine grain exports from black seaports, uh, grain exports. Yes, the uh, kinda sub. subtitle here is Ukraine and Russia have agreed a deal that would allow the resumption of vital grain exports from Ukrainian Black seaports, a major diplomatic breakthrough aimed at easing a global food crisis sparked by the war.

Yeah, no, that, I think that's definitely good. It's really in one thing that's kind of interesting to me is how obvious food. is from a national security perspective like pe, I think people tend to underappreciate the importance of American agriculture. We are the biggest exporter of agricultural products in the world.

We can actually feed our entire country based off of our own agricultural production if we wanted to. Now, I mean we, we definitely import a. Fruits and vegetables and even meats. I mean, we, so there is a lot of trade that goes on, but if push came to shove, we can actually feed our people. Uh, I would think that people would start appreciating that a little bit more whenever they see the implications of Ukrainian, uh, fertilizer ingredients being stuck in Ukraine and, and grain being stuck in Ukraine and what that does to their whole agricultural system and the cost of the food.

Uh, but a lot of times it seems like our policy makers don't care about that. Uh, they don't, they don't care and understand the importance of food security and, uh, our own independence from relying on foreign governments for food. So, uh, great that they're gonna be, what was it, releasing? Yes. Vital Grain production.

Nice. Nice. Yeah. Y'all got Ukraine? We got Iowa. Okay. What are your thoughts? US Economy just had a second quarter of negative growth. Is it in a recession? No, that's the title. Crap. It's in a recession. This was the stupidest thing I've ever seen. For all of history, a recession has been defined as two consecutive.

Quarters of negative GDP growth, and then we get in our second consecutive quarter of negative GDP growth and they're like, ah, wait, that's not a recession. It's something else. And I still haven't exactly learned what that something else is, but it was kind of funny how they're like, whoa, whoa. We’re not let's not call it a recession.

That's not, that's not what that word means. Uh, but it has until all of. Meant two consecutive quarters of negative GDP growth until right now. So weird how that works. Okay. Now for my favorite one, we are back to Russia a little bit. Yes, but also Texas. Nice. Okay. And this one's kind of a long one, but here it goes.

Okay. Hawaii couple accused of being Russian spies after stealing babies' identities. Wait, wait. Do this one again. So that's the, the main headline. I'll read it and then I'll read it with the sub-headline. Also, Hawaii Couple accused of being Russian spies after stealing baby's identities. A couple in Hawaii is accused of being Russian spies after they stole the identities of children who died in Texas in the 1980s.

Oh. The couple is being charged with conspiracy to commit crimes against the US identity theft and lying on their passport applications. Okay. Well, I'm glad you gave me the additional context cuz I immediately pictured like some Russian dude with a… And a nice thick accent coming over here and the TSA agent saying, sir, you're five years old.

But luckily, this kid was in the, this was a 1980s kid. Um, also, this kind of brings me back to like the whole trading a Russian arms dealer for Brittney Grimer. I think we should probably reevaluate that negotiation and try to, let's get a little bit. Let's get a little bit more. How do you think they picked the children's identities from Texas from the 1980s?

Did they look up death records and just pick a random one? No. No. It wasn't random. I don't know. They're rushing. It was probably random, but they're, do we know they're they're only accused of being Russian. That's true. They're alleged Russian spies. Yeah. That's important to to note. Yeah. They're not necessarily, oh, I gotta go get on my call.

Sorry, Russians. Our time is up. Edwin is staring at me with his goofy ass. Okay. Oh God. Oh my God. All right let's go get on that call. Very last thing from my friend Drew Barry. Have a great week y'all. See you next. We. For more immigration talks. Nailed it. Thank y'all for listening to the Immigration Guy Podcast.

We really appreciate it. You can find us on our website. Go to You can find me on LinkedIn and Twitter. Just search at Kyle Farmer, FLPC. You can find our law firm on Twitter, Instagram, YouTube. All you have to do is search for at Farmer Law PC. Go ahead and subscribe to download all the episodes of our podcast.

You can download 'em and listen to 'em whenever and wherever you want. Uh, we'll be releasing new episodes every Wednesday on Spotify, Apple Music, Stitcher, which is apparently a real thing. Amazon Music, Google, and wherever else you get your podcast. This is not legal advice, so any information that you get from this podcast should not be taken as.

If you are looking for legal advice, you should consult with a competent attorney for advice regarding your individual situation. Uh, if you wanna schedule a consultation, just go ahead and use the link in the description of this episode. Thank you.