Immigration Law Associates
Chicago Lawyer, Attorney: Green Card, H-1B, National Interest Waiver, J-1, Spouse, Fiance, Student Visa, VAWA, Citizenship, Removal, Korean, Polish, Japanese, Spanish

H-1B v. TN – Weighing The Options

 
There are numerous factors to consider in determining whether an H-1B visa or TN nonimmigrant status is the better option in view of the immigration objectives at hand. The advantages of an H-1B are many for Canadian and Mexican nationals. For example, the applicant for TN nonimmigrant status must fit within a specific group of professions listed in NAFTA, and in almost every case, a degree or license is required. In contrast, H-1B beneficiaries have more flexibility in that the position sought need only be a "specialty occupation" (i.e., requiring at least a bachelor's degree as the minimum entry requirement into the profession), and education and experience may be combined to satisfy the degree requirement. Non-graduates may qualify for an H-1B if they can show that they are "graduate equivalent" with twelve or more years work experience in the occupation (three years of relevant work experience may substitute for one year of education).

In addition, TN status requires the applicant to have temporary nonimmigrant intent. Thus, the TN applicant may not apply to become a permanent resident while holding TN status. In contrast, the H-1B allows for dual intent and thus permits an H-1B holder to apply to become a permanent resident while maintaining H-1B nonimmigrant status.

On the other hand, the H-1B petition process is more complex, time-consuming, and costly. Canadian applicants seeking TN status, for example, may apply at any U.S. port of entry, U.S. airport handling international traffic, or U.S. pre-clearance/pre-flight station; no prior approval from USICIS is necessary. In contrast, an applicant seeking H-1B status must first have his employer submit an H-1B petition.This process involves gathering information for the prevailing wage, obtaining certification for the labor condition application, and then waiting for USCIS to process the petition. Only after receiving an approval notice may the H-1B beneficiary present it at a U.S. port of entry. Further, compared to the filing fees associated with obtaining TN nonimmigrant status, the fees for an H-1B petition are substantial.

In addition, there are no numerical limits on the number of TN applicants who may be approved each year, while the number of H-1B visas available each year is capped, and the maximum number has been met, and exceeded, every year in a very short period of time.

 

The above-described factors are summarized in the following table:

H-1B Visa

TN Nonimmigrant Status

  • Applicant must be seeking a "specialty occupation"
  • Applicant must be seeking a position that falls within NAFTA-specific professions
  • Bachelor's degree is required, but education and experience may be combined to satisfy degree requirement
  • Bachelor's degree or license is required for almost all professions, and experience will not satisfy this requirement
  • Employer must submit H-1B petition which must be adjudicated by USCIS
  • Prior approval from USCIS not required (for Canadian national applicants)
  • Applicant may have dual intent (may apply for permanent residence while maintaining H-1B nonimmigrant status)
  • Applicant must have temporary nonimmigrant intent (may not apply for permanent residence while holding TN status)
  • There are numerical limits on the number of H-1B visas issued each year
  • There is no numerical limit on the number of TN applicant who may be approved each year
  • Substantial filing fees must be paid
  • Requires more modest filing fees

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