TN Visa or H-1B Visa - A Canadian Quandary

Canadian citizen professionals often find themselves infor the H1B visa on April 1st.  You can apply for a TN
a bit of a quandary when initially researching thevisa anytime during the year.
various U.S. immigration work visa options available toStart date - initial applications:  Unless your H1B
them.  Assuming that they are not transferring from aemployment will be at a non-profit research
Canadian company to its U.S. office, and therefore theorganization or a university, you cannot start working
L-1 visa is not available to them, Canadian citizenany earlier than October 1st, following the April 1st
professionals typically find themselves contemplatingapplication date.  You can start working in the TN
the TN visa and H1B visa and the differences orstatus as soon as your application is approved at a
similarities between the two.port of entry.
TN Visa OverviewQuotas/Lotteries:  The H1B visa has a max quota of
The TN Visa is a nonimmigrant work visa for65,000 every year for the regular category and 20,000
professional workers who are citizens of Canada andfor the master’s degree category.  When this cap
Mexico and whose specific occupations appear on thefills up as it always has in recent prior years, there is
schedule created by NAFTA (Appendix 1603.D.1 ofan H1B visa lottery.  The lottery means that some
NAFTA).  Please see the following link for anpeople who apply and qualify for the H1B visa will not
overview of the specific occupations and requiredget it due to the large number of people applying, as
education and/or experience from the schedulesome applications will not make it through the lottery. 
created by NAFTA:  TN Occupation List.  The TNThere is no quota or lottery at all with the TN visa.  If
visa is particularly beneficial for Canadian citizens asyou apply and qualify and have presented a
they can process their applications directly at a port ofprofessionally prepared application then you will receive
entry without obtaining prior USCIS approval or withoutthe TN visa (also assumes you don't have any
going to a consulate for a visa stamp.grounds of inadmissibility).
H1B visa OverviewGovernment Filing Fees - Initial applications:  At a
The H-1B Visa is a nonimmigrant work visa under theminimum, the H1B filing fees are a total of $820 for
Immigration & Nationality Act, section 101(a)(15)(H),those who will be working at a non-profit research
for professional workers from all over the world thatorganization or university.  At a maximum, the H1B
allows foreign nationals to be temporarily employed infiling fees are a total of $2,320 for those who are
the U.S. in a specialty occupation.  A specialtyworking at a company with more than 25 full-time
occupation is defined as requiring theoretical andemployees.  This doesn't include the $1,000 for
practical application of a body of highly specializedpremium processing.  The TN visa has a government
knowledge in a field of "human endeavor."  Somefee of $56.
common occupation categories are as follows: Renewals/Extensions:  Unless a Labor Certification
computer and internet technology, marketing, law,Application has been pending for a year or more or
accounting, finance, mathematics, architecture,you have an approved I-140, the H1B visa can only be
engineering, sciences, medicine, education, business,renewed for a max of six years.  In theory, the TN
arts, public relations, various technology fields, fashion,can be renewed indefinitely.
etc.  With the exception of fashion models, the H1BDual intent:  The H1B visa allows for dual intent, which
visa requires at a minimum the attainment of ameans an individual in H1B status or an individual
bachelor’s degree or its equivalent and stateapplying for an H1B visa can have immigrant intent, i.e.
licensure if required.they can have intent to reside permanently in the U.S.
TN visa v. H1B visaand apply for a green card.  One cannot have an
When deciding between the TN visa and the H1B visa,immigrant intent when either applying for the TN visa
a Canadian citizen may want to consider the followingor while in TN visa status.
details.Transition to a Green Card:  The transition to a green
Visa Duration:  H1B visa is granted in three yearcard can appear at first glance to be problematic for a
increments for a max period of six years (unless aTN visa individual because of the fact that the TN visa
labor certification has been pending for at least onedoesn't have dual intent, unlike the H1B visa status. 
year or he/she has an approved I-140).  Thereafter,However, there are ways around this issue without
an H1B visa holder must leave the US for at least onetransitioning to the H1B visa status.  One of the ways
year in order to avail himself or herself of more timewhich has been successfully used by many individuals
on the H1B.  In addition, any time spent on the L-1 Visais to consular process their green card in Canada as
is also counted towards the six year period.  TN visaopposed to adjusting their status in the U.S.  If one is
is granted in three year increments for an unlimitedin the H1B status, they can adjust status
period of time.to permanent residency inside the U.S.
Ease of Obtaining:  The H1B visa can only beConclusion
obtained after an employer files a Labor CertificationAs you can see from the above, the TN visa is quite
Application and submits a lengthy I-129 application tofavorable to Canadians who fall within one of the
USCIS regarding the details of employment.  The TNoccupation categories of the visa.  For the most part,
Visa can be obtained directly at a port of entry with ait's much more sensible than the H1B visa.  One of the
detailed letter from the employer concerning theonly few perceived advantages of the H1B visa is the
position and evidence from the Canadian citizendual intent aspect, but, contrary to popular belief, one
concerning how he or she qualifies for the position.can properly navigate the dual intent issue in the TN
Timing - Initial applications:  Unless the H1Bstatus with the assistance of effective and
employment will be at a non-profit researchexperienced legal counsel.
organization or a university, you can only initially apply